- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
Form 10-Q
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Quarterly Period Ended Commission File Number
March 31, 1994 2-54754
General American Transportation Corporation
Incorporated in the IRS Employer Identification No.
State of New York 36-2827991
500 West Monroe Street
Chicago, Illinois 60661-3676
312/621-6200
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
-----
Registrant had 1,000 shares of common stock outstanding (all owned by GATX
Corporation) as of April 29, 1994.
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- -------------------------------------------------------------------------------
<PAGE>
PART I--FINANCIAL INFORMATION
GENERAL AMERICAN TRANSPORTATION CORPORATION AND SUBSIDIARIES
--------------------------
<TABLE>
CONSOLIDATED INCOME STATEMENTS (UNAUDITED)
IN MILLIONS
<CAPTION>
Three Months Ended
March 31
------------------
1994 1993
------ ------
<S> <C> <C>
Gross income............................................$ 154.6 $ 147.3
Costs and expenses
Operating expenses.................................... 70.6 64.5
Interest.............................................. 18.2 21.4
Provision for depreciation and amortization........... 26.9 26.4
Selling, general and administrative................... 11.3 9.6
----- -----
127.0 121.9
----- -----
Income before income taxes and equity in net
earnings of affiliated companies...................... 27.6 25.4
Income taxes............................................ 10.6 9.4
----- -----
Income before equity in net earnings of
affiliated companies.................................. 17.0 16.0
Equity in net earnings of affiliated
companies............................................. 3.7 3.4
----- -----
Net income..............................................$ 20.7 $ 19.4
======== ========
- --------------------
<FN>
Note - The consolidated balance sheet at December 31, 1993 has been derived from
the audited financial statements at that date. All other consolidated financial
statements are unaudited but include all adjustments, consisting only of normal
recurring items, which management considers necessary for a fair statement of
the consolidated results of operations and financial position for the respective
periods. Operating results for the three months ended March 31, 1994 are not
necessarily indicative of the results that may be achieved for the entire year
ending December 31, 1994.
</FN>
</TABLE>
-1-
<PAGE>
GENERAL AMERICAN TRANSPORTATION CORPORATION AND SUBSIDIARIES
------------------
<TABLE>
CONSOLIDATED BALANCE SHEETS
IN MILLIONS
ASSETS
<CAPTION>
March 31 December 31
1994 1993
--------- -----------
(Unaudited)
<S> <C> <C>
Cash and cash equivalents...................... $ 6.5 $ 11.7
Trade receivables - net........................ 46.1 45.3
Property, plant and equipment
Railcars and support facilities.............. 1,785.0 1,735.8
Tank storage terminals and pipelines......... 1,042.1 1,014.8
------- -------
2,827.1 2,750.6
Less - Allowances for depreciation........... (1,211.1) (1,193.3)
------- -------
1,616.0 1,557.3
Due from GATX Corporation...................... 366.3 361.5
Investments in affiliated companies............ 155.2 148.2
Other assets................................... 87.8 91.6
------- -------
TOTAL ASSETS $ 2,277.9 $ 2,215.6
========= =========
</TABLE>
-2-
<PAGE>
<TABLE>
LIABILITIES, DEFERRED ITEMS AND SHAREHOLDER'S EQUITY
<CAPTION>
March 31 December 31
1994 1993
----------- -----------
(Unaudited)
<S> <C> <C>
Accounts payable............................... $ 94.9 $ 98.4
Accrued expenses............................... 39.2 36.0
Debt
Short-term debt.............................. 154.0 104.2
Long-term debt............................... 728.7 731.9
Capital lease obligations.................... 124.7 126.8
------- ------
1,007.4 962.9
Deferred income taxes.......................... 269.6 265.6
Other deferred items........................... 210.3 208.8
------- ------
Total liabilities and deferred items 1,621.4 1,571.7
Shareholder's equity
Common Stock - par value $1 per share;
1,000 shares authorized, issued and
outstanding (owned by GATX Corporation)..... - -
Additional capital........................... 335.0 335.0
Reinvested earnings.......................... 315.7 306.5
Cumulative foreign currency translation
adjustment.................................. 5.8 2.4
------- ------
Total shareholder's equity 656.5 643.9
------- ------
TOTAL LIABILITIES, DEFERRED ITEMS
AND SHAREHOLDER'S EQUITY $ 2,277.9 $ 2,215.6
========= =========
</TABLE>
-3-
<PAGE>
GENERAL AMERICAN TRANSPORTATION CORPORATION AND SUBSIDIARIES
--------------------
<TABLE>
STATEMENTS OF CONSOLIDATED CASH FLOWS (UNAUDITED)
IN MILLIONS
<CAPTION>
Three Months Ended
March 31
------------------
1994 1993
------ -------
<S> <C> <C>
OPERATING ACTIVITIES
- --------------------
Net income $ 20.7 $ 19.4
Adjustments to reconcile net income to net cash
provided by operating activities:
Provision for depreciation and amortization 26.9 26.4
Deferred income taxes 3.7 1.4
Other (includes working capital) (.2) 8.6
----- -----
NET CASH PROVIDED BY OPERATING ACTIVITIES 51.1 55.8
INVESTING ACTIVITIES
- --------------------
Additions to property, plant and equipment:
Railcars and support facilities (60.0) (46.0)
Tank storage terminals and pipelines (27.0) (11.1)
Investments in affiliated companies - (.8)
------- ------
Capital additions (87.0) (57.9)
Proceeds from other asset dispositions 2.6 .6
------- ------
NET CASH USED IN INVESTING ACTIVITIES (84.4) (57.3)
FINANCING ACTIVITIES
- --------------------
Proceeds from issuance of long-term debt - 13.3
Repayment of long-term debt (3.3) (13.6)
Net increase in short-term debt 49.8 16.8
Repayment of capital lease obligations (2.1) (1.9)
Cash dividends paid to GATX Corporation (11.5) (10.4)
Net increase in amount due from GATX Corporation (4.8) (5.7)
------ ------
NET CASH PROVIDED BY (USED IN) FIANCING
ACTIVITIES 28.1 (1.5)
------ ------
NET (DECREASE) IN CASH AND CASH EQUIVALENTS $ (5.2) $ (3.0)
======= =======
</TABLE>
-4-
<PAGE>
MANAGEMENT'S DISCUSSION OF OPERATIONS
COMPARISON OF FIRST THREE MONTHS OF 1994 TO FIRST THREE MONTHS OF 1993
GENERAL
- -------
General American Transportation Corporation's (GATC's) net income for the first
quarter of 1994 was $21 million compared to net income of $19 million for the
first quarter of 1993. Net income increased 7% due to higher railcar and
terminal rental income and lower interest expense resulting from lower interest
rates and interest rate swaps which were executed to more closely match the
duration of Transportation's debt with the railcar lease terms. These were
partially offset by increased selling, general and administrative costs
primarily attributable to higher compensation, training and information systems
costs.
Cash provided by operating activities of $51 million decreased $5 million from
the first three months of 1993. The decrease is principally due to changes in
working capital.
Capital additions for the quarter totaled $87 million, up $29 million from the
1993 first quarter. Transportation invested $56 million in the railcar fleet
versus $42 million in last year's first quarter; approximately $4 million was
expended on the repair facilities in both quarters. Terminals expended $27
million in the quarter for tank construction and other modifications and
improvements compared to $12 million in last year's first quarter. Full year
1994 capital spending is forecasted to approximate $450 million compared to $273
million in 1993. A portion of the 1994 expenditures may not be effected
depending on market conditions. It is anticipated that capital expenditures
will be funded by both internally generated funds and GATC's available external
financing sources.
GATC had available unused committed lines of credit of $183 million at
March 31, 1994. During the quarter, GATC filed a $650 million shelf
registration for pass through trust certificates and debt securities, none of
which has yet been issued.
-5-
<PAGE>
RESULTS OF OPERATIONS
- ---------------------
Following is a discussion of the operating results of GATC's business segments:
<TABLE>
RAILCAR LEASING AND MANAGEMENT (TRANSPORTATION)
- ---------------------------------------------------------------------
<CAPTION>
Three Months Ended
(In Millions) March 31
------------------
1994 1993 Change
------- ------- ----------------
<S> <C> <C> <C> <C>
Gross Income $ 78.0 $ 73.5 $ 4.5 6%
Net Income $ 13.2 $ 12.4 $ .8 6%
- ---------------------------------------------------------------------
</TABLE>
Transportation's gross income for the first quarter of 1994 increased 6% from
the comparable prior year period due to higher revenues attributable to
additional railcars on lease and slightly higher lease rates. Fleet utilization
at March 31, 1994 was 93% on a fleet size of 56,400 compared to 92% on a fleet
size of 54,900 a year ago. At quarter end, the active fleet totaled 52,600
compared to 50,250 a year ago.
Net income increased 6% from the first quarter of 1993 as higher revenues and
slightly lower ownership costs were partially offset by increased fleet repair
costs. Ownership costs, consisting of rental expense, depreciation and
interest, decreased slightly despite an increased fleet size due to lower
interest rates and interest rate swaps which were executed to more closely match
the duration of Transportation's debt with the railcar lease terms. Operating
margins decreased as the increase in fleet repair costs exceeded the growth in
revenues.
-6-
<PAGE>
<TABLE>
TERMINALS AND PIPELINES
- ---------------------------------------------------------------------
<CAPTION>
Three Months Ended
(In Millions) March 31
--------------------
1994 1993 Change
------- ------- -------------------
<S> <C> <C> <C> <C>
Gross Income $ 72.3 $ 69.2 $ 3.1 4%
Net Income $ 7.5 $ 7.0 $ .5 7%
- --------------------------------------------------------------------
</TABLE>
Terminals' 1994 gross income increased 4% reflecting overall strong petroleum
activity at a number of its larger facilities and higher throughput. Throughput
for the first quarter was 174 million barrels compared to 152 million barrels a
year ago. Capacity utilization at Terminals' wholly-owned facilities was 87%
compared to 92% at year end and 91% at the end of the first quarter of 1993.
Utilization declined as a result of certain tankage being out of service for
maintenance and repairs and reduced utilization in the United Kingdom.
Terminals' net income of $7.5 million increased 7% from the 1993 comparable
period due to the higher revenues, slightly improved margins and a $.4 million
increase in earnings at the foreign affiliates.
-7-
<PAGE>
PART II - OTHER INFORMATION
Item 1. Legal Proceedings.
- ---------------------------
GATC has previously reported a number of lawsuits which have been filed in the
Superior Court for the State of California and served upon Terminals, Calnev
Pipe Line Company or another GATX subsidiary seeking an unspecified amount of
damages arising out of the May 1989 explosion in San Bernardino, California. In
addition to those lawsuits, the case of Zamarripa, et al, vs. Southern Pacific
Railroad Company, et al, (No. 526684) was filed in November 1993 in the County
of San Bernardino. Based upon information known to management, it remains
management's opinion that if damages are assessed and taking into consideration
probable insurance recovery, the ultimate resolution of the lawsuits arising out
of the May 1989 explosion will not have a material effect on GATC's consolidated
financial position or results of operations.
The Environmental Protection Agency has issued a Complaint and Compliance Order
against Terminals, alleging among other things that its Tampa, Florida facility
exceeded the ninety-day limitation on the storage of hazardous materials and
failed to implement a hazardous waste analysis plan in violation of the
Resources Conservation and Recovery Act and Florida statues. The Complaint
seeks injunctive relief and penalties of $341,235. Terminals has admitted
certain portions of the Complaint and is vigorously defending the remaining
allegations.
Except as reported above and other than as previously reported, neither the
Registrant nor any of its subsidiaries is currently a party to any material
pending legal proceeding, other than ordinary routine litigation incidental to
the business, and to the belief of the Registrant, no such proceeding is
contemplated.
Item 6. Exhibits and Reports on Form 8-K. Page
- ----------------------------------------- -----
(a) 4 Prospectus Supplement dated February 25, 1994 incorporated
by reference to the shelf registration on Form S-3 dated
February 25, 1994, file number 33-52301.
10 Third Amended and Restated Revolving Credit Agreement
for General American Transportation Corporation dated
as of March 31, 1994 with respect to the Quarterly
Report on Form 10-Q for the period ended March 31, 1994,
file number 2-54754. Submitted to the SEC along with the
electronic submission.
12 Statement regarding computation of ratios of
earnings to fixed charges. 10
(b) No reports on Form 8-K were filed during the reporting
period.
-8-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
GENERAL AMERICAN TRANSPORTATION CORPORATION
(Registrant)
/s/D. Ward Fuller
-----------------------------------
D. Ward Fuller
President, Chief Executive Officer
and Director
(Duly Authorized Officer)
/s/Melvin D. Kusta
-----------------------------------
Melvin D. Kusta
Controller and Principal
Accounting Officer
Date: May 10, 1994
-9-
<PAGE>
THIRD
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
Dated as of March 31, 1994
by and among
GENERAL AMERICAN TRANSPORTATION CORPORATION,
BANKERS TRUST COMPANY,
as agent
and
ABN AMRO BANK N.V., CHICAGO BRANCH
THE BANK OF NEW YORK
BANKERS TRUST COMPANY
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION)
CHEMICAL BANK
THE FIRST NATIONAL BANK OF CHICAGO
THE INDUSTRIAL BANK OF JAPAN, LTD.
MELLON BANK, N.A.
BANK OF MONTREAL
SWISS BANK CORPORATION
CITIBANK, N.A.
J.P. MORGAN DELAWARE
<PAGE>
TABLE OF CONTENTS
-----------------
Page
-----
ARTICLE I DEFINITIONS; CONSTRUCTION. . . . . . . . . . . . . . 1
Section 1.01. Definitions. . . . . . . . . . . . . . . . 1
Section 1.02. Accounting Terms and Determinations. . . . 9
Section 1.03. Other Definitional Terms . . . . . . . . . 10
ARTICLE II AMOUNTS AND TERMS OF LOANS. . . . . . . . . . . 10
Section 2.01. Commitments. . . . . . . . . . . . . . . . 10
Section 2.02. Notice of Borrowing. . . . . . . . . . . . 10
Section 2.03. Disbursement of Funds. . . . . . . . . . . 11
Section 2.04. Other. . . . . . . . . . . . . . . . . . . 12
Section 2.05. Interest . . . . . . . . . . . . . . . . . 13
Section 2.06. Interest Periods . . . . . . . . . . . . . 14
Section 2.07. Repayment of Loans . . . . . . . . . . . . 15
Section 2.08. Termination or Reduction of Commitments. . 15
Section 2.09. Prepayments. . . . . . . . . . . . . . . . 15
Section 2.10. Fees . . . . . . . . . . . . . . . . . . . 16
Section 2.11. Payments, Etc. . . . . . . . . . . . . . . 17
Section 2.12. Illegality.. . . . . . . . . . . . . . . . 18
Section 2.13. Increased Costs, Etc . . . . . . . . . . . 19
Section 2.14. Change of Lending Office; Replacement of
Banks. . . . . . . . . . . . . . . . . . . 22
Section 2.15. Funding Losses . . . . . . . . . . . . . . 22
Section 2.16. Sharing of Payments, Etc.. . . . . . . . . 22
Section 2.17. Yield Protection . . . . . . . . . . . . . 23
ARTICLE III CONDITIONS TO BORROWINGS AND RESTATEMENT. . . . 24
Section 3.01. Conditions Precedent to Certain Loans. . . 24
Section 3.02. Conditions Precedent to Third Amendment
and Restatement. . . . . . . . . . . . . . 24
ARTICLE IV REPRESENTATIONS AND WARRANTIES. . . . . . . . . 25
Section 4.01. Corporate Existence. . . . . . . . . . . . 25
Section 4.02. Authorization of Agreement; No Viola-
tion . . . . . . . . . . . . . . . . . . . 25
Section 4.03. Governmental Approvals . . . . . . . . . . 26
Section 4.04. Binding Effect . . . . . . . . . . . . . . 26
Section 4.05. Financial Information. . . . . . . . . . . 26
Section 4.06. Litigation . . . . . . . . . . . . . . . . 26
Section 4.07. Employee Benefit Plans . . . . . . . . . . 27
ARTICLE V COVENANTS. . . . . . . . . . . . . . . . . . . . . . 27
Section 5.01. Certain Affirmative Covenants. . . . . . . 27
Section 5.02. Reporting Covenants. . . . . . . . . . . . 28
Section 5.03. Financial Test Covenants for the
Company. . . . . . . . . . . . . . . . . . 31
Section 5.04. Mergers, Etc.. . . . . . . . . . . . . . . 32
Section 5.05. Special Negative Pledge Covenant . . . . . 32
Section 5.06. Use of Proceeds. . . . . . . . . . . . . . 32
Section 5.07. Certain Transfers to Subsidiaries of the
Company. . . . . . . . . . . . . . . . . . 33
<PAGE>
ARTICLE VI EVENTS OF DEFAULT . . . . . . . . . . . . . . . 33
Section 6.01. Payments . . . . . . . . . . . . . . . . . 33
Section 6.02. Covenants Without Notice . . . . . . . . . 33
Section 6.03. Other Covenants. . . . . . . . . . . . . . 33
Section 6.04. Representations. . . . . . . . . . . . . . 33
Section 6.05. Non-Payments of Other Indebtedness . . . . 34
Section 6.06. Defaults Under Other Agreements. . . . . . 34
Section 6.07. Failure to Pay, Etc. . . . . . . . . . . . 34
Section 6.08. Bankruptcy . . . . . . . . . . . . . . . . 34
Section 6.09. ERISA. . . . . . . . . . . . . . . . . . . 35
Section 6.10. Judgments. . . . . . . . . . . . . . . . . 35
Section 6.11. Change of Control; Merger. . . . . . . . . 35
ARTICLE VII THE AGENT . . . . . . . . . . . . . . . . . . . 36
Section 7.01. Appointment of Agent . . . . . . . . . . . 36
Section 7.02. Nature of Duties of Agent. . . . . . . . . 36
Section 7.03. Lack of Reliance on the Agent. . . . . . . 37
Section 7.04. Certain Rights of the Agent. . . . . . . . 37
Section 7.05. Reliance by Agent. . . . . . . . . . . . . 37
Section 7.06. Indemnification of Agent . . . . . . . . . 38
Section 7.07. The Agent in its Individual Capacity . . . 38
Section 7.08. Successor Agent. . . . . . . . . . . . . . 38
Section 7.09. Holders of Notes . . . . . . . . . . . . . 39
ARTICLE VIII MISCELLANEOUS . . . . . . . . . . . . . . . . . 39
Section 8.01. Notices. . . . . . . . . . . . . . . . . . 39
Section 8.02. Amendments, Etc. . . . . . . . . . . . . . 40
Section 8.03. No Waiver; Remedies Cumulative . . . . . . 40
Section 8.04. Payment of Expenses, Etc.. . . . . . . . . 41
Section 8.05. Adjustment; Set-Off. . . . . . . . . . . . 42
Section 8.06. Benefit of Agreement.. . . . . . . . . . . 44
Section 8.07. Governing Law; Submission to
Jurisdiction . . . . . . . . . . . . . . . 46
Section 8.08. Independent Nature of Banks' Rights. . . . 47
Section 8.09. Counterparts . . . . . . . . . . . . . . . 47
Section 8.10. Effectiveness; Survival of Indemnities . . 47
Section 8.11. Headings Descriptive . . . . . . . . . . . 47
Section 8.12. Survival of Representations. . . . . . . . 48
Section 8.13. Severability . . . . . . . . . . . . . . . 48
Section 8.14. Prior Lenders and GATX . . . . . . . . . . 48
SCHEDULE 1: Lending Offices
EXHIBIT A: Form of Promissory Note of the Company
EXHIBIT B: Form of Opinion of Paul A. Heinen, Esq.
EXHIBIT C: Form of Opinion of Messrs. Mayer, Brown & Platt
EXHIBIT D: Form of GATX Side Letter
EXHIBIT E: Form of Assignment and Assumption Agreement
<PAGE>
This THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
(this "Agreement") was initially dated as of October 20, 1987,
amended and restated as of September 28, 1990, amended as of March
31, 1992, amended and restated as of November 13, 1992 and is
hereby further amended and restated as of March 31, 1994 by and
among General American Transportation Corporation, a New York
corporation (the "Company"), as the borrower hereunder, the
undersigned financial institutions in their capacities as lenders
hereunder (collectively, the "Banks" and each, a "Bank"), and
Bankers Trust Company, as Agent (as defined below).
R E C I T A L S:
----------------
The Company and the Company's corporate parent, GATX
Corporation, a New York corporation ("GATX"), previously requested
that certain of the Banks and certain other financial institutions
(the "Prior Lenders") make available to them certain credit
facilities described below, and such Banks and the Prior Lenders
were willing to make such credit facilities available to the
Company and GATX, all upon the terms and subject to the conditions
set forth in this Agreement, as previously in effect (the "Original
Agreement").
The Company, GATX, certain of the Banks, the Prior Lenders and
the Agent entered into the Original Agreement as of October 20,
1987, amended and restated the Original Agreement as of September
28, 1990 (the "First Restatement"), amended the First Restatement
as of March 31, 1992 and subsequently amended and restated the
First Restatement as of November 13, 1992 (the "Second
Restatement").
Among other things, the Second Restatement provided for the
removal of GATX as a party to and as a borrower under this
Agreement.
The Company, the Banks and the Agent now desire to amend and
to restate the Second Restatement in its entirety to effect the
changes provided for herein.
NOW, THEREFORE, it is agreed as follows:
ARTICLE I.
DEFINITIONS; CONSTRUCTION
-------------------------
Section 1.01. Definitions. In addition to the terms defined
-----------
in the introduction to this Agreement, as used herein, the
following terms shall have the meanings herein specified (to be
equally applicable to both the singular and plural forms of the
terms defined):
"Acquiree Bank" shall have the meaning provided in Section
-------------- -------
8.06(d).
- -------
<PAGE>
"Acquiror Bank" shall have the meaning provided in Section
------------- -------
8.06(d).
- -------
"Affiliate" of any Person means any other Person directly or
---------
indirectly controlling, controlled by, or under common control
with, such Person, whether through the ownership of voting
securities, by contract or otherwise.
"Agent" shall mean Bankers Trust Company, acting in the manner
-----
and to the extent described in Article VII hereof, including any
-------
successors and assigns thereunder.
"Agencies" shall mean Standard and Poor's Corporation and
--------
Moody's Investors Service, Inc. or any successor entity or entities
thereto.
"Agreement" shall mean this Third Amended and Restated
---------
Revolving Credit Agreement, as amended, supplemented or modified
from time to time.
"Authorized Officer" of any Person shall mean the Chairman of
----------
the Board of Directors, President, Chief Financial Officer or
Treasurer of such Person; provided, that any certificate delivered
--------
pursuant to this Agreement by any officer of any Person other than
the Chief Financial Officer or Treasurer of such Person shall not
be considered to have been delivered by an Authorized Officer
unless such certificate states that such officer has conferred on
the subject matter thereof with the Chief Financial Officer or
Treasurer of such Person.
"Bank" shall have the meaning provided in the introduction to
----
this Agreement.
"Bankruptcy Code" shall have the meaning provided in Section
--------------- -------
6.08.
- ----
"Base Rate" shall mean, for any day, a rate per annum (rounded
---------
upwards to the next highest 1/16 of 1% if not already an integral
multiple of 1/16 of 1%) equal to the greater of (a) the Prime
Lending Rate (computed on the basis of the actual number of days
elapsed over a year of 365 days) in effect on such day; or (b) the
Federal Funds Effective Rate in effect on such day plus
three-eighths of one percent (3/8%) per annum.
"Base Rate Loan" shall mean a Loan bearing interest at the
--------------
rate provided in Section 2.05(a).
---------------
"Benefitted Bank" shall have the meaning provided in Section
--------------- -------
8.05.
- ----
"Bond Ratings" shall mean the Company's senior, unsecured long
------------
term bond ratings, as determined by the Agencies.
<PAGE>
"Borrowing" shall mean a borrowing by the Company pursuant to
---------
a Notice of Borrowing consisting of the same Type of Loans having
the same Interest Period (except as otherwise provided in Sections
--------
2.12 and 2.13) to be made (except as indicated in Section 2.03(c))
- -------------- ----------------
by all of the Banks concurrently.
"BTCo." shall mean Bankers Trust Company, a banking
----
corporation chartered under the laws of the State of New York.
"Business Day" shall mean any day excluding (i) Saturday,
------------
Sunday and any other day on which banks are required or authorized
to close in Chicago or New York City and (ii) if the applicable
Business Day relates to Eurodollar Loans any day on which trading
is not carried on by and between banks in Dollar deposits in the
applicable interbank Eurodollar market.
"Code" shall mean the Internal Revenue Code of 1986, as
----
amended from time to time.
"Commitment" shall have the meaning provided in Section
---------- -------
2.01(b).
- -------
"Commitment Percentage" shall mean, with respect to each Bank,
---------------------
the percentage set opposite the name of such Bank on the signature
pages hereof.
"Company" shall have the meaning provided in the introduction
-------
to this Agreement.
"Consolidated Capital Base" shall mean as at any date, the
------------
sum of the Consolidated Tangible Net Worth of the Company, plus
- --- ----
deferred income tax liabilities of the Company and its Subsidiaries
on a consolidated basis at such date determined in accordance with
GAAP.
"Consolidated Net Income" for any Person shall mean, for any
------------
fiscal quarter of such Person, the net after-tax income of such
Person and its Subsidiaries for such fiscal quarter, determined on
a consolidated basis in accordance with GAAP.
"Consolidated Pre-Tax Income" for any Person shall mean, for
------------
any fiscal quarter of such Person, the Consolidated Net Income of
such Person for such fiscal quarter, plus any income taxes accrued
----
by such Person and its Subsidiaries during such fiscal quarter,
less any Equity in Net Earnings of Affiliated Companies in such
- ----
fiscal quarter, plus or minus, as applicable, the non-cash
cumulative effect of accounting changes.
"Consolidated Tangible Net Worth" of the Company shall mean as
-------------------------------
at any date, the Net Worth of the Company and its Subsidiaries,
determined on a consolidated basis, minus intangible assets
-----
(including, without limitation, franchises, patents and patent
applications, trademarks and brand names, goodwill, research and
development expenses, unamortized debt discount and expense, and
<PAGE>
all write-ups in the book value of any asset (excluding write-ups
of assets resulting from the application of principles of purchase
accounting).
"Default" shall mean any condition or event which, with notice
-------
or lapse of time or both, would constitute an Event of Default.
"Designated Quarter" of any Person shall mean any fiscal
------------------
quarter of such Person for which the Consolidated Net Income of
such Person and its Subsidiaries is greater than zero.
"Dollar" and the sign "$" shall mean lawful money of the
------ --
United States of America.
"Effective Date" shall have the meaning provided in Section
-------------- --------
8.10.
- -----
"Equity in Net Earnings of Affiliated Companies" shall mean
----------------------------------------------
the after-tax earnings attributed to the Company in connection with
its investments in (a) Persons as to which the Company owns at
least 20% but not more than 50% of the total equity interests and
(b) joint ventures in which the Company is a participant.
"ERISA" shall mean the Employee Retirement Income Security Act
-----
of 1974, as amended from time to time.
"ERISA Affiliate" shall mean each trade or business (whether
---------------
or not incorporated) which together with the Company or a
Subsidiary of the Company would be under "common control" within
the meaning of Section 4001 of ERISA.
"ERISA Termination Event" shall mean (i) a "reportable event"
-----------------------
described in Section 4043 of ERISA and the regulations issued
thereunder, other than a "reportable event" with respect to which
the provision for thirty (30) day notice to the PBGC has been
waived or contingently waived under such regulations, or (ii) the
withdrawal of the Company or any Subsidiary of the Company or any
ERISA Affiliate from a Plan during a plan year in which it was a
"substantial employer" as defined in Section 4001(a)(2) of ERISA,
or (iii) the filing of a notice of intent to terminate a Plan with
respect to which there are insufficient assets to pay benefits as
they become due or the treatment of an amendment of such a Plan as
a termination under Section 4041 of ERISA, or (iv) the institution
of proceedings to terminate a Plan by the PBGC or (v) any other
event or condition which might constitute grounds under Section
4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan; provided, that no event or
--------
occurrence of the type described in clauses (i) through (v) above
shall constitute an ERISA Termination Event unless there shall
result from such event or occurrence either a liability or a
material risk of incurring a liability to the PBGC or a Plan, which
will have a material adverse effect upon the business, financial
condition, results of operation or prospects of the Company,
together with its Subsidiaries taken as a whole.
<PAGE>
"Eurodollar Loan" shall mean a Loan bearing interest at the
---------------
rate provided in Section 2.05(b).
---------------
"Eurodollar Rate" shall mean the arithmetic average (rounded
---------------
upwards to the nearest 1/16 of 1%) of the offered quotation, if
any, to first-class banks in the Eurodollar market by each of the
Reference Banks for Dollar deposits of amounts in immediately
available funds comparable to the principal amount of the
Eurodollar Loan of such Reference Bank for which the Eurodollar
Rate is being determined with maturities comparable to the Interest
Period for which such Eurodollar Rate will apply as of
approximately 10:00 A.M. (New York time) two (2) Business Days
prior to the commencement of such Interest Period. If any
Reference Bank fails to provide its offered quotation to the Agent,
the Eurodollar Rate shall be determined on the basis of the
quotation(s) of the other Reference Bank(s).
"Event of Default" shall have the meaning provided in Article
---------------- -------
VI.
- --
"Facility Fees" shall have the meaning provided in Section
------------- -------
2.10.
- ----
"Federal Funds Effective Rate" shall mean, for any day, the
----------------------------
rate set forth in the weekly statistical release designated as
H.15(519), or any successor publication, published by the Board of
Governors of the Federal Reserve System (including any such
successor, "H.15(519)") for that day opposite the caption "Federal
Funds (Effective)". If on any relevant day such rate is not yet
published in H.15(519), the rate for that day will be the rate set
forth in the daily statistical release designated as the Composite
3:30 P.M. Quotations for U.S. Government Securities, or any
successor publication, published by the Federal Reserve Bank of New
York (including any such successor, the "Composite 3:30 P.M.
Quotations") for that day under the caption "Federal Funds
Effective Rate". If on any relevant day the appropriate rate for
such day is not yet published in either H.15(519) or the Composite
3:30 P.M. Quotations, the rate for such day will be the arithmetic
mean of the rates for the last transaction in overnight Federal
funds arranged prior to 9:00 A.M., New York time, on that day by
each of three leading brokers of Federal funds transactions in New
York City, selected by the Agent.
"First Restatement" shall have the meaning provided in the
-----------------
recitals to this Agreement.
"Former Bank" shall have the meaning provided in Section
----------- -------
8.06(e).
- -------
<PAGE>
"GAAP" shall mean generally accepted accounting principles in
----
the United States of America as in effect on the date hereof and
applied on a basis consistent with the financial statements
referred to in Sections 4.05(a) and 4.05(b), respectively.
---------------- -------
"GATX" shall have the meaning provided in the recitals to this
----
Agreement.
"Indebtedness" of any Person shall mean (without duplication):
------------
(a) all obligations of such Person for borrowed money or
for the deferred purchase price of property or services, and all
obligations evidenced by bonds, debentures, notes or other similar
instruments (but excluding in each case those accounts payable and
accruals that were incurred or created in the normal course of
business and have original maturities of one year or less);
(b) all rental obligations under leases required to be
capitalized under, and as valued in accordance with, GAAP;
(c) all guaranties (direct or indirect), all contingent
reimbursement obligations under undrawn letters of credit and other
contingent obligations of such Person in respect of, or obligations
to purchase or otherwise acquire or to assure payment of,
Indebtedness of others; and
(d) all obligations of such Person under, in connection
with or related to (i) any preferred stock or any instrument of a
similar character issued by such Person which has or may
potentially have characteristics of Indebtedness under GAAP
(including, without limitation, support provided by a letter or
letters of credit), or (ii) any financing instrument or arrangement
issued or undertaken by such Person (A) that has a stated maturity
date, (B) under which any default does or may result in any payment
obligation or acceleration of any payment obligation, (C) that is
subject to a redemption obligation that either is mandatory or may
be imposed at the option of the holder or obligee thereof, or (D)
that is convertible or exchangeable into any other instrument of
Indebtedness.
"Indebtedness for Borrowed Money" of any Person shall mean all
------------
Indebtedness of such Person other than all guaranties (direct or
indirect), all contingent reimbursement obligations under undrawn
letters of credit and other contingent obligations of such Person
in respect of, or obligations to purchase or otherwise acquire or
to assure payment of, Indebtedness of others.
"Intercompany Borrowings" of any Person shall mean, as of any
-----------------------
date, all net Indebtedness for Borrowed Money on such date of such
Person owed to Affiliates of such Person.
<PAGE>
"Interest" shall mean all payments and obligations that would
--------
constitute payments of or obligations on account of interest under
GAAP, and shall include (without limitation) amortization of
original issue discount on any Indebtedness, the interest portion
of any deferred payment obligation, calculated in accordance with
the effective interest method of accounting, the net costs
associated with interest rate swap obligations or agreements, and
all but the principal component of rentals in respect of
capitalized lease obligations, reasonably determined in accordance
with GAAP.
"Interest Expense" of any Person shall mean for any fiscal
----------------
quarter of such Person, the aggregate amount of Interest paid or
accrued by such Person during such fiscal quarter with respect to
Indebtedness owed to Persons that are not Affiliates of such
Person, determined in accordance with GAAP but without duplication.
"Interest Period" shall have the meaning provided in Section
--------------- -------
2.06.
- ----
"Lending Office" shall mean for each Bank the office specified
--------------
opposite such Bank's name on Schedule 1 hereto with respect to each
----------
Type of Loan, or such other office as such Bank may designate in
writing from time to time to the Company and the Agent with respect
to such Type of Loan.
"Lien" shall mean any mortgage, pledge, security interest,
----
encumbrance, lien, charge or deposit arrangement or other
arrangement having the practical effect of any of the foregoing and
shall include the interest of a vendor or lessor under any
conditional sale agreement, capitalized lease or other title
retention agreement.
"Loan" shall have the meaning provided in Section 2.01(a).
---- ---------------
"Long-Term Indebtedness for Borrowed Money" of any Person as
-----------------------------------------
of any date shall mean all Indebtedness for Borrowed Money of such
Person which is not a current liability as of such date as
determined in accordance with GAAP.
"Majority Banks" shall mean at any time Banks holding more
--------------
than fifty percent (50%) of the then aggregate unpaid principal
amount of the Loans, or, if no such principal amount is then
outstanding, Banks having more than fifty percent (50%) of the
aggregate Commitments.
"Margin Stock" shall have the meaning provided in
------------
Regulation U.
"Maturity Date" shall mean March 31, 1998.
-------------
"Net Worth" shall mean, with respect to any Person as at any
---------
date, the sum of the capital stock and additional capital, plus
--- ----
reinvested earnings (or minus accumulated deficit) of such Person
-----
at such date, determined in accordance with GAAP.
<PAGE>
"Note" shall mean any promissory note issued pursuant to
----
Section 2.04(c).
- ---------------
"Notice of Borrowing" shall have the meaning provided in
-------------------
Section 2.02(a).
- ---------------
"Obligations" shall mean all unpaid principal of and accrued
-----------
and unpaid interest on the Indebtedness incurred pursuant to this
Agreement, all accrued and unpaid fees and all other obligations of
the Company to the Agent or any Bank arising under this Agreement
or any Note.
"Original Agreement" shall have the meaning provided in the
------------------
recitals to this Agreement.
"Payment Office" shall mean the Agent's office located at One
Bankers Trust Plaza, New York, New York 10006, Attention: Ms. Mary
Rodwell, Loan Division.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or
----
any successor thereto.
"Pension Plan" shall mean any Plan which is a multiemployer
------------
plan or single employer plan, as defined in Section 4001 and
subject to Title IV of ERISA.
"Person" shall mean any individual, partnership, firm,
------
corporation, association, joint venture, trust or other entity, or
any government or political subdivision or agency, department or
instrumentality thereof.
"Plan" shall mean any employee benefit plan, as defined in
----
Section 3(3) of ERISA, which is or, at any time during the five (5)
calendar years preceding the date of this Agreement, was maintained
for employees of the Company or a Subsidiary of the Company or an
ERISA Affiliate.
"Prime Lending Rate" shall mean the rate which BTCo. announces
------------------
from time to time as its prime lending rate, as in effect from time
to time. The Prime Lending Rate is a reference rate and does not
necessarily represent the lowest or best rate actually charged to
any customer. BTCo. and the other Banks may make commercial loans
or other loans at rates of interest at, above or below the Prime
Lending Rate.
"Prior Lenders" shall have the meaning provided in the
-------------
recitals to this Agreement.
"Railcar Lease Expense" shall mean, for any fiscal quarter of
---------------------
the Company, the Company's railcar sale/leaseback operating lease
expense for such fiscal quarter.
<PAGE>
"Reference Banks" shall mean BTCo., The First National Bank of
---------------
Chicago and The Chase Manhattan Bank (National Association).
"Register" shall have the meaning provided in Section 2.04(a).
-------- ---------------
"Regulation D" and "Regulation U" shall mean Regulation D and
-------------------------------
Regulation U, respectively, of the Board of Governors of the
Federal Reserve System as from time to time in effect and any
successor thereto.
"Regulatory Change" shall have the meaning provided in Section
------------------ -------
2.17.
- ----
"Replacement Bank" shall have the meaning provided in Section
---------------- -------
8.06(e).
- -------
"Required Banks" shall mean at any time Banks holding at least
--------------
sixty-six and two-thirds percent (66-2/3%) of the then aggregate
unpaid principal amount of the Loans, or, if no such principal
amount is then outstanding, Banks having at least sixty-six and
two-thirds percent (66-2/3%) of the aggregate Commitments.
"Second Restatement" shall have the meaning provided in the
------------------
recitals to this Agreement.
"Second Restatement Date" shall mean November 19, 1992.
-----------------------
"Short-Term Indebtedness for Borrowed Money" for any Person
------------------------------------------
shall mean, as of any date, any Indebtedness for Borrowed Money of
such Person other than Long-Term Indebtedness for Borrowed Money.
"Subsidiary" of any Person shall mean a corporation of which
----------
a majority of the outstanding shares of stock of each class having
ordinary voting power is owned by such Person, by one or more
Subsidiaries of such Person, or by such Person and one or more of
its Subsidiaries.
"Third Restatement Date" shall mean March 31, 1994.
----------------------
"Total Indebtedness" of the Company shall have the meaning
------------------
provided in Section 5.03(c).
---------------
"Type" of Loan shall mean Base Rate Loan or Eurodollar Loan.
------
"Unrelated Guaranties" shall mean guaranties extended by the
---------------------
Company or GATX Terminals Corporation relating to Indebtedness for
Borrowed Money incurred by other Persons which are not consolidated
with the Company, as determined in accordance with GAAP.
<PAGE>
Section 1.02. Accounting Terms and Determinations. Unless
-----------------------------------
otherwise defined or specified herein, all accounting terms shall
be construed herein, all accounting determinations hereunder shall
be made, all financial statements required to be delivered here-
under shall be prepared and all financial records shall be
maintained in accordance with GAAP.
Section 1.03. Other Definitional Terms. The words "hereof",
------------------------
"herein" and "hereunder" and words of similar import when used in
this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement, and article, section,
schedule, exhibit and like references are to this Agreement unless
otherwise specified. The words "the date hereof" and words of
similar import when used in this Agreement shall refer to the Third
Restatement Date.
ARTICLE II.
AMOUNTS AND TERMS OF LOANS
--------------------------
Section 2.01. Commitments.
-----------
(a) Subject to and upon the terms and conditions herein
set forth, each Bank severally agrees, at any time and from time to
time prior to the Maturity Date, to make loans (each a "Loan" and
collectively the "Loans") to the Company.
(b) Each Loan made to the Company pursuant hereto by
each Bank shall, at the option of the Company, be either a Base
Rate Loan or a Eurodollar Loan; provided, that, except as otherwise
--------
specifically contemplated herein, all Loans made pursuant to the
same Borrowing shall be of the same Type. In addition, the Loans
made pursuant hereto by each Bank shall not exceed in aggregate
principal amount outstanding at any one time the amount set forth
opposite such Bank's name on the signature pages hereof (as the
same may be reduced pursuant to Section 2.08 and otherwise from
------------
time to time, its "Commitment," and collectively for all Banks, the
"Commitments"). There may be more than one Borrowing on any day.
Within the foregoing limits and subject to the conditions set forth
in Article III, the Company may borrow under this Section, repay
------------
under Section 2.07, prepay under Section 2.09 and reborrow.
(c) The aggregate principal amount of each Borrowing
hereunder shall be not less than $5,000,000 and shall be in an
integral multiple of $1,000,000 (except that any Borrowing of Base
Rate Loans may be in the aggregate amount of the unused
Commitments).
Section 2.02. Notice of Borrowing.
-------------------
(a) Whenever the Company desires to make a Borrowing
hereunder, it shall give the Agent at least same-day written notice
(or telephonic notice promptly confirmed in writing) of each Base
Rate Loan and at least three (3) Business Days' prior written
<PAGE>
notice (or telephonic notice promptly confirmed in writing) of each
Eurodollar Loan to be made hereunder, such notice to be given prior
to 11:00 A.M. (New York time) on the date specified. Each such
notice (each a "Notice of Borrowing") shall be irrevocable and
specify the aggregate principal amount of the Loans to be made
pursuant to such Borrowing, the date of Borrowing (which shall be
a Business Day), whether the Loans being made pursuant to such
Borrowing are to be Base Rate Loans or Eurodollar Loans and the
Interest Period to be applicable thereto.
(b) Without in any way limiting the obligation of the
Company to confirm in writing any telephonic notice, the Agent may
act without liability upon the basis of telephonic notice believed
by the Agent in good faith to be from the Company prior to receipt
of written confirmation.
(c) The Agent shall promptly give each Bank telephonic
notice (confirmed in writing) of the proposed Borrowing, of such
Bank's proportionate share thereof and of the other matters covered
by the Notice of Borrowing.
(d) Each Reference Bank agrees to furnish to the Agent
timely information for the purpose of determining each Eurodollar
Rate, as applicable. The Agent shall give prompt notice by
telephone (confirmed in writing) or in writing to the Company and
the Banks of the applicable interest rate determined by the Agent
for purposes of Section 2.05(a) or (b), and the applicable rate, if
--------------- ---
any, furnished by each Reference Bank for the purpose of
determining the applicable interest rate under Section 2.05(b).
---------------
Section 2.03. Disbursement of Funds.
---------------------
(a) On the date of each Borrowing by the Company, no
later than 1:00 P.M. (New York time) for Base Rate Loans and 10:00
A.M. (New York time) for Eurodollar Loans, each Bank will make
available at the Payment Office its pro rata portion of the amount
(if any) by which the principal amount of the Borrowing requested
to be made on such date exceeds the principal amount of Loans made
to the Company (if any) maturing on such date, in Dollars and in
immediately available funds. The Agent will make available to the
Company at the Payment Office the aggregate of the amounts (if any)
so made available by the Banks, and in that connection, the Agent
will not intentionally unduly delay any Fed wire or other wire
transfer requested by the Company of immediately available funds
received by the Agent (or made available by the Agent in its
discretion pursuant to Section 2.03(b) below) relating to any
---------------
Borrowing. To the extent that Loans made to the Company by the
Banks mature on the date of a requested Borrowing made by the
Company, the Banks shall apply the proceeds of the Loans they are
then making, to the extent thereof, to the repayment of such
maturing Loans, such Loans and repayments intended to be a
contemporaneous exchange, with such application of proceeds to be
the method of repayment pro tanto of such Loans.
---------
<PAGE>
(b) Unless the Agent shall have been notified by any
Bank prior to the date of a Borrowing that such Bank does not
intend to make available to the Agent such Bank's portion of the
Borrowing to be made on such date, the Agent may assume that such
Bank has made such amount available to the Agent on such date and
the Agent may make available to the Company a corresponding amount.
If such corresponding amount is not in fact made available to the
Agent by such Bank on the date of Borrowing, the Agent shall be
entitled to recover such corresponding amount on demand from such
Bank together with interest at the customary rate set by the Agent
for the correction of errors among banks. If such Bank does not
pay such corresponding amount forthwith upon the Agent's demand
therefor, the Agent shall promptly notify the Company, and the
Company shall promptly pay such corresponding amount to the Agent
together with interest at the rate specified for the Borrowing
which includes such amount paid, from and including the date of
such Borrowing to but excluding the date of payment. Nothing in
this subsection shall be deemed to relieve any Bank from its
obligation to fulfill its Commitment hereunder or to prejudice any
rights that the Company may have against any Bank as a result of
any default by such Bank hereunder.
(c) No Bank shall be responsible for any default by any
other Bank in its obligation to make Loans hereunder, and each Bank
shall be obligated to make the Loans provided to be made by it
hereunder, regardless of the failure of any other Bank to fulfill
its Commitment hereunder. In the event that any Bank does not make
any Loan it is obligated to make hereunder as part of any Borrowing
to the Company, upon same-day written notice to the Agent received
prior to 2:00 P.M. (New York time) (or telephonic notice prior to
such time promptly confirmed in writing), the Company may make a
Borrowing from all the other Banks, according to the terms of this
Article II, composed of Base Rate Loans in an aggregate principal
amount equal to the principal amount of the Loan to have been made
by such defaulting Bank; provided, however, that no Bank shall be
-------- -------
required pursuant to this sentence to make any Loan causing the
aggregate principal amount of its Loans to exceed its Commitment;
and provided, further, that the Commitment Percentages of all Banks
-------- -------
other than any Bank not making the Loan it is obligated to make (as
contemplated above) shall be adjusted, solely for the purpose of
computing pro rata shares of the Borrowing provided for in this
sentence, so as to equal one hundred percent (100%). Any written
notice received by the Agent from the Company in compliance with
the terms of the second sentence of this Section 2.03(c) shall
---------------
constitute a Notice of Borrowing for all purposes hereunder.
Section 2.04. Other.
-----
(a) The Agent shall maintain a register (the "Register")
on which it will record the Commitment of each Bank in respect of
the Loans, the Borrowings made in respect thereof with respect to
each Bank and each repayment in respect of any Loans made to each
Bank. Any such recordation by the Agent on the Register shall be
<PAGE>
conclusive, absent manifest error. Each Bank shall record on its
internal records (including computerized systems) the amount of
each Borrowing made from it in respect of the Loans and each
repayment to it in respect thereof. Failure to make any such
recordation, or any error in such recordation, shall not affect the
Company's Indebtedness hereunder in respect of the Loans. No
promissory notes are being delivered by the Company hereunder
(except pursuant to Section 2.04(c)); accordingly, the Register
----------------
shall constitute the sole evidence of the Indebtedness of the
Company hereunder for all purposes hereof.
(b) The Company hereby waives presentment, demand,
protest or notice of dishonor in connection with the payment of the
Obligations hereunder.
(c) The Company hereby agrees that, upon the request of
the Agent by any Bank at any time, such Bank's Loan shall be
evidenced by a promissory note of the Company (a "Note"),
substantially in the form of Exhibit A hereto with appropriate
---------
insertions as to date and principal amount, payable to the order of
such Bank and representing the obligation of the Company to pay the
unpaid principal amount of the Loan made by such Bank, with
interest as provided herein on the unpaid principal amount from
time to time outstanding.
Section 2.05. Interest.
--------
(a) The Company agrees to pay interest in respect of the
unpaid principal amount of each Base Rate Loan made to the Company
from the date thereof to maturity (whether by acceleration or
otherwise) at a rate per annum which shall be equal to the Base
Rate in effect from time to time.
(b) The Company agrees to pay interest in respect of the
unpaid principal amount of each Eurodollar Loan made to the Company
from the date thereof to maturity of such Loan (whether by
acceleration or otherwise) at a rate per annum which shall be equal
to the Eurodollar Rate plus the percentage per annum set forth
below corresponding to the lower of the Company's Bond Ratings as
of the first day of the applicable Interest Period:
Bond Ratings Percentage
------------ ----------
A/A2 .225%
A-/A3 .235%
BBB+/Baa1 .240%
BBB/Baa2 .275%
BBB-/Baa3 or below .400%
(or unrated by
either or both of
the Agencies)
<PAGE>
(c) Overdue principal and, to the extent permitted by
law, overdue interest in respect of each Loan to the Company and
all other overdue amounts owing by the Company hereunder shall bear
interest for the first day that such amounts are overdue at a rate
per annum equal to, and for each day thereafter that such amounts
are overdue at a rate per annum equal to two percent (2%) per annum
in excess of, the greater from time to time of: (i) the interest
rate applicable to such Loan on the date such principal amount or
interest payment first became due and payable, whether by
acceleration or otherwise (with respect to principal and interest
due on any Loan), and (ii) the Base Rate.
(d) Interest on each Loan shall accrue from and
including the date of such Loan to but excluding the date of any
repayment thereof and shall be payable (i) on the last day of the
Interest Period applicable thereto, (ii) in the case of an Interest
Period in excess of three (3) months in the case of a Eurodollar
Loan, on each day which occurs every ninety (90) days or three (3)
months, respectively, after the initial date of such Interest
Period, (iii) on any prepayment (on the amount prepaid), (iv) at
maturity (whether by acceleration or otherwise) and (v) after
maturity, on demand.
Section 2.06. Interest Periods. In connection with each
----------------
Borrowing, the Company shall elect an interest period (each an
"Interest Period") to be applicable to such Borrowing, which
Interest Period shall (x) in the case of Base Rate Loans, be a
period of any number of days equal to or less than thirty (30)
days, and (y) in the case of Eurodollar Loans, be either a one (1),
two (2), three (3) or six (6) month period; provided, that:
--------
(a) the Interest Period for any Loan shall commence
on the date of such Loan and each Interest Period occurring
thereafter in respect of such Loan shall commence on the day on
which the next preceding Interest Period expires;
(b) if any Interest Period would otherwise expire
on a day which is not a Business Day, such Interest Period shall
expire on the next succeeding Business Day; provided, that if any
--------
Interest Period in respect of a Eurodollar Loan would otherwise
expire on a day which is not a Business Day but is a day of the
month after which no further Business Day occurs in such month,
such Interest Period shall expire on the next preceding Business
Day;
(c) any Interest Period in respect of a Eurodollar
Loan which begins on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall, subject
to paragraph (d) below, end on the last Business Day of a calendar
month;
<PAGE>
(d) no Interest Period shall extend beyond any date
upon which the Commitments are to be reduced under Section 2.08,
------------
unless the aggregate principal amount of Loans which are Base Rate
Loans or which have Interest Periods which will expire on or before
such date is equal to or in excess of the amount of any prepayment
which would be required pursuant to Section 2.09 in connection with
------------
any such Commitment reduction;
(e) no Interest Period for any Loan shall extend
beyond the Maturity Date; and
(f) there shall be no more than twenty (20)
Interest Periods relating to Eurodollar Loans outstanding at any
time.
Section 2.07. Repayment of Loans. The Company shall repay to
------------------
each Bank the unpaid principal amount of each Loan made by such
Bank to the Company hereunder on the last day of the Interest
Period in respect of such Loan (which is herein sometimes referred
to as the "maturity" of such Loan), subject to Section 2.03(a)
-------------
above.
Section 2.08. Termination or Reduction of Commitments. The
---------------------------------------
Company may, upon at least three (3) Business Days' notice to the
Agent from the Company, terminate entirely at any time, or
proportionately reduce from time to time by an aggregate amount of
$10,000,000 or any larger multiple of $5,000,000, any portion of
the Commitments to the Company, provided that any such reduction
shall apply proportionately to the Commitment of each Bank. If the
Commitments are terminated in their entirety, all accrued
commitment fees and agency fees shall be payable on the effective
date of such termination.
Section 2.09. Prepayments.
-----------
(a) Concurrently with any reduction of the Commitments
pursuant to Section 2.08, the Company shall prepay such amount of
------------
each Bank's outstanding Loans to the Company, if any, as may be
necessary so that after such prepayment the aggregate unpaid
principal amount of each Bank's Loans does not exceed its pro rata
share of the amount of such Bank's Commitment as then reduced, as
the case may be. Each prepayment made pursuant to this Section
shall be accompanied by all interest accrued on the principal
amount prepaid to the date of such prepayment and shall be applied
to prepay the Loans of the several Banks in proportion to their
respective Commitments.
(b) The Company may, upon at least two (2) Business
Days' irrevocable written notice (or telephonic notice promptly
confirmed in writing) to the Agent, prepay any Loans made to the
Company at any time in whole, or from time to time in any multiple
of $5,000,000, by paying the principal amount to be prepaid
<PAGE>
together with accrued interest thereon to the date of prepayment;
provided, that any prepayment that reduces the outstanding
- --------
principal amount of any Loan to zero may be in an amount less than
$5,000,000. Each such optional prepayment shall be applied to
prepay the Loans made to the Company by the several Banks in
proportion to their respective Commitments. Upon any prepayment by
the Company of any Eurodollar Loan, the Company shall, pursuant to
the terms of Section 2.15, promptly compensate each Bank that makes
------------
a written request for compensation pursuant to such Section.
(c) Upon receipt of a notice of prepayment pursuant to
this Section 2.09, the Agent shall promptly notify each Bank of the
contents thereof and of such Bank's ratable share of such
prepayment.
Section 2.10. Fees.
----
(a) Facility Fees. The Company shall pay to the Agent
-------------
for the account of and pro rata distribution to each Bank a
facility fee (collectively, the "Facility Fees") for the period
commencing on the Third Restatement Date and including the Maturity
Date for such Bank (or such earlier date as the Commitments shall
have been terminated) computed, subject to Section 2.10(b) below,
---------------
at a rate equal to the percentage per annum set forth below which
corresponds to the lower of the Company's Bonds Ratings as of the
applicable payment date on such Bank's average daily Commitment
during such quarter:
Bond Ratings Percentage
------------ ----------
A/A2 .1250%
A-/A3 .1400%
BBB+/Baa1 .1875%
BBB/Baa2 .2250%
BBB-/Baa3 or below .2500%
(or unrated by
either or both of
the Agencies)
Such Facility Fees shall be payable in arrears on the last Business
Day of each January, April, July and October, and on the Maturity
Date or such earlier date as the Commitments shall be terminated.
(b) Reduction in Facility Fee For Certain Banks. In the
-------------------------------------------
event that any Bank fails to make one or more Loans it is obligated
hereunder to make, as contemplated in Section 2.03(c) above, any
---------------
Facility Fee otherwise due to such Bank on any date after such
failure shall be equal to the product of: (i) the amount to which
-------
such Facility Fee would otherwise be equal hereunder, multiplied by
-------------
(ii) a fraction, the numerator of which is equal to the aggregate
outstanding principal amount of such Bank's Loans on such date, and
the denominator of which is equal to the aggregate outstanding
principal amount of all Loans that such Bank was obligated to make
<PAGE>
through and including such date pursuant to the terms hereof (such
last-mentioned outstanding amount to be calculated as though all
such Loans had been made and all corresponding scheduled repayments
had been paid as scheduled).
Section 2.11. Payments, Etc.
-------------
(a) Except as otherwise specifically provided herein,
all payments under this Agreement shall be made without defense,
set-off or counterclaim to the Agent, and shall be initiated (by
Fed wire or other wire transfer with appropriate Fed wire or other
wire transfer reference number) not later than 11:00 A.M. (New York
time) on the date when due and shall be made in Dollars in
immediately available funds at the Payment Office of the Agent. The
Agent will promptly thereafter distribute funds in the form
received relating to the payment of principal or interest or
Facility Fee ratably to the Banks for the account of their
respective Lending Offices, and funds in the form received relating
to the payment of any other amount payable to any Bank to such Bank
for the account of its Lending Office.
(b) (i) Any and all payments by the Company hereunder
shall be made free and clear of and without deduction for any
present or future taxes, levies, imposts, deductions, charges or
withholdings (except to the extent that any such deduction or
withholding is compelled by law or results from any Bank's breach
of its agreement contained in clause (ii) of this Section 2.11(b)
---------------
or would not be required if any Bank's representation or warranty
contained in such clause (ii) were true), excluding, in the case of
---------
each Bank, taxes imposed on its income, and franchise taxes imposed
on it, by the jurisdiction under the laws of which such Bank is
organized or the jurisdiction in which such Bank's Lending Office
is located. If the Company shall be required by law to deduct any
such non-excluded taxes, levies, imposts, deductions, charges or
withholdings from or in respect of any sum payable hereunder to any
Bank, the sum payable shall (except to the extent that such
deduction results from such Bank's breach of its agreement
contained in clause (ii) of this Section 2.11(b) or would not be
---------------
required if such Bank's representation or warranty contained in
such clause (ii) were true) be increased as may be necessary so
that after making all required deductions (including deductions
applicable to additional sums payable under this Section
-------
2.11(b)(i)) such Bank receives an amount equal to the sum it would
- -----------
have received had no such deductions been made.
(ii) In consideration of, and as a condition to, the
Company's undertaking in Section 2.11(b)(i), each Bank (other than
------------------
any Bank organized and existing under the laws of the United States
of America or any State thereof) agrees to execute and deliver to
the Agent for delivery to the Company, before the first scheduled
payment date in each year, a United States Internal Revenue Service
Form 1001 or 4224, or any successor form, as appropriate, properly
completed and claiming complete exemption from withholding and
<PAGE>
deduction of United States federal taxes. Each Bank represents and
warrants to the Company and the Agent that, as of the date of this
Agreement, each of its Lending Offices is entitled to receive
payments of principal and interest hereunder without deduction for
or on account of any taxes imposed by the United States of America
or any political subdivision thereof. If a Bank determines, as a
result of any change in any applicable law, regulation or treaty,
or in any official application thereof, or its circumstances, that
it is unable to submit any form that it is obligated to submit
hereunder, or that it is required to withdraw or cancel any such
form previously submitted, it shall promptly notify the Company and
the Agent of such fact. Each Bank hereby agrees to indemnify the
Company and the Agent from and against all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits,
costs or expenses that result from such Bank's breach of such
representation and warranty; provided, that no Bank shall be liable
--------
for any portion thereof resulting from the Company's or the Agent's
gross negligence or willful misconduct, as applicable.
(iii) The Company will indemnify each Bank and the
Agent for the full amount of taxes imposed by any jurisdiction on
such Bank or the Agent (on its own behalf or on behalf of any Bank)
in respect of payments made or to be made hereunder and any
liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, whether or not such taxes were
correctly or legally asserted, excluding, in the case of the Agent
and each Bank, taxes imposed on its income, and franchise taxes
imposed on it, by the jurisdiction under the laws of which such
Bank is organized or the jurisdiction in which such Bank's Lending
Office is located.
(c) Whenever any payment to be made hereunder shall be
stated to be due on a day which is not a Business Day, the due date
thereof shall be extended to the next succeeding Business Day and,
with respect to payments of principal, interest thereon shall be
payable at the applicable rate during such extension, in each case
subject to Section 2.06(b).
---------------
(d) All computations of interest and Facility Fees shall
be made on the basis of a year of three hundred sixty (360) days
for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such
interest or Facility Fees are payable; provided, that the Base Rate
--------
shall be determined on the basis of the actual number of days
elapsed over a year of three hundred sixty-five (365) days. Each
determination by the Agent of an interest rate or fee hereunder
shall, except for manifest error, be final, conclusive and binding
for all purposes.
<PAGE>
Section 2.12. Illegality.
----------
(a) In the event that any Bank shall have determined
(which determination shall, absent manifest error, be final,
conclusive and binding upon all parties) at any time that the
making or continuance of any Eurodollar Loan has become unlawful by
compliance by such Bank in good faith with any applicable law,
governmental rule, regulation, guideline or order (whether or not
having the force of law and whether or not failure to comply
therewith would be unlawful), then, in any such event, the Bank
shall give prompt notice (by telephone confirmed in writing) to the
Company and to the Agent of such determination (which notice the
Agent shall promptly transmit to the other Banks).
(b) Upon the giving of the notice to the Company
referred to in subsection (a) above, (i) the right of the Company
to request from such Bank and such Bank's obligation to make
Eurodollar Loans, as the case may be, shall be immediately
suspended, and such Bank shall make a Base Rate Loan as part of any
future requested Borrowing of Eurodollar Loans as a replacement
Loan with an Interest Period for such replacement Loan identical to
the Interest Period for such requested Eurodollar Loan, which such
replacement Loan shall, for all other purposes, be considered part
of such Borrowing, except that if the Interest Period, or part
------
thereof, for such requested Eurodollar Loan is greater than thirty
(30) days, then instead of any single replacement Loan, the Company
shall elect a series of replacement Loans, each for an Interest
Period permitted by Section 2.06, the Interest Period for the last
------------
of which shall end on the last day of the Interest Period
applicable to the Eurodollar Loans constituting such requested
Borrowing (each such election to be made in accordance with Section
-------
2.02); and (ii) if the affected Eurodollar Loan or Loans are then
- -----
outstanding, then (x) if permitted by applicable law, upon at least
one Business Day's written notice to the Agent and the affected
Bank, no later than the date permitted thereby, or (y) immediately,
the Company shall convert each such Loan made to the Company into
a replacement Base Rate Loan or Loans; provided, that the date on
--------
which the Interest Period applicable to the affected Eurodollar
Loans expires shall also be the last day of an Interest Period for
each such replacement Loan; except that if the remaining Interest
------
Period, or part thereof, for such Eurodollar Loan is greater than
thirty (30) days, then instead of any single replacement Loan, the
Company shall elect a series of replacement Loans with Interest
Periods chosen in the manner required under the preceding clause
(i) so as to ultimately coincide with the last day of the Interest
Period applicable to the affected Eurodollar Loans; and provided,
--------
further that if more than one Bank is affected at any time, then
- -------
all affected Banks must be treated the same pursuant to this
Section 2.12(b).
- ---------------
Section 2.13. Increased Costs, Etc.
--------------------
(a) If, by reason of (x) after the Third Restatement
Date, the introduction of or any change (including, without
limitation, any change by way of imposition or increase of reserve
requirements) in or in the interpretation of any law or regulation,
or (y) the compliance with any guideline or request from any
<PAGE>
central bank or other governmental authority or quasi-governmental
authority exercising control over banks or financial institutions
generally (whether or not having the force of law):
(i) any Bank (or its applicable Lending Office)
shall be subject to any tax, duty or other charge with respect
to its Eurodollar Loans or its obligation to make Eurodollar
Loans, or the basis of taxation of payments to any Bank of the
principal of or interest on its Eurodollar Loans or its
obligation to make Eurodollar Loans shall change (except for
changes in the rate of tax on the overall net income of such
Bank or its applicable Lending Office imposed with respect to
its Eurodollar Loans by the jurisdiction in which such Bank's
principal executive office or applicable Lending Office is
located); or
(ii) any reserve (including, without limitation, any
reserve imposed by the Board of Governors of the Federal
Reserve System), special deposit or similar requirement
against assets of, deposits with or for the account of, or
credit extended by, any Bank's applicable Lending Office shall
be imposed or deemed applicable or any other condition
affecting its Eurodollar Loans or its obligation to make
Eurodollar Loans shall be imposed on any Bank or its
applicable Lending Office or the interbank Eurodollar market;
and as a result thereof there shall be any increase in the cost to
such Bank of agreeing to make or making, funding or maintaining
Eurodollar Loans, or there shall be a reduction in the amount
received or receivable by such Bank or its applicable Lending
Office, then the Company shall from time to time, upon written
notice from and demand by such Bank (with a copy of such notice and
demand to the Agent), pay the Agent for the account of such Bank,
within five (5) Business Days after the date specified in such
notice and demand, additional amounts sufficient to indemnify such
Bank against such increased cost with respect to such Eurodollar
Loans. Such Bank shall submit a certificate as to the amount of
and reason for such increased cost to the Company and the Agent
concurrently with its delivery to the Company of written notice
thereof, which certificate shall, except for manifest error, be
final, conclusive and binding for all purposes.
(b) If (i) any Bank shall advise the Agent that at any
time, because of the circumstances described in clauses (x) or (y)
of Section 2.13(a) or any other circumstances arising after the
---------------
Third Restatement Date affecting such Bank or the interbank
Eurodollar market or such Bank's position in such market, it has
made the reasonable determination that the Eurodollar Rate, as
determined by the Agent, will not adequately and fairly reflect the
cost to such Bank of funding its Eurodollar Loans, or (ii) the
Agent shall have determined (which determination shall, absent
manifest error, be final, conclusive and binding upon all parties)
<PAGE>
that on any date for determining the Eurodollar Rate for any
Interest Period, by reason of any changes arising after the Third
Restatement Date affecting the interbank Eurodollar market or the
positions in such market of all Reference Banks, no adequate and
fair means exist for any and all Reference Banks to ascertain the
applicable interest rate on the basis provided for in the
definition of Eurodollar Rate, then, and in any such event:
(A) the Agent shall forthwith give notice (by
telephone confirmed in writing) to the Company and to the Banks of
such advice or determination;
(B) the right of the Company to request from such
Bank upon such advice under clause (i) above, or from any Bank upon
such determination under clause (ii) above, and the obligation of
such Bank under clause (i) above or any Bank under clause (ii)
above, as the case may be, to make Eurodollar Loans shall be
immediately suspended;
(C) such Bank, upon such advice under clause (i)
above or such determination under clause (ii) above, shall make a
Base Rate Loan as part of any proposed or future requested
Borrowing of Eurodollar Loans as a replacement Loan with an
Interest Period for such replacement Loan identical to the Interest
Period for such requested Eurodollar Loans, which such replacement
Loan shall, for all other purposes, be considered part of such
Borrowing, except that if the remaining Interest Period, or part
------
thereof, for such Eurodollar Loan is greater than thirty (30) days,
then instead of any single replacement Loan, the Company shall
elect a series of replacement Loans, each for an Interest Period
permitted by Section 2.06, the Interest Period for the last of
which shall end on the last day of the Interest Period applicable
to the Eurodollar Loans constituting such requested Borrowing (each
such election to be made in accordance with Section 2.02); and
------------
(D) if the affected Loans are then outstanding,
then the Company shall, upon the receipt of any notice delivered
pursuant to paragraph (A) above, convert each such Loan made to the
Company into a replacement Base Rate Loan or Loans; provided, that
--------
the date on which the Interest Period applicable to the affected
Loans expires shall also be the last day of an Interest Period for
each such replacement Loan, except that if the remaining Interest
------
Period, or part thereof, for such Eurodollar Loan is greater than
thirty (30) days, then instead of any single replacement Loan, the
Company shall elect a series of replacement Loans with Interest
Periods chosen in the manner required under clause (C) of this
Section 2.13(b) so as to ultimately coincide with the last day of
- ---------------
the Interest Period applicable to the affected Loans; and provided,
--------
further that if more than one Bank is affected at any time, then
- -------
all affected Banks must be treated the same pursuant to this
Section 2.13(b).
- ---------------
<PAGE>
(c) The provisions of clause (i) of Section 2.13(b)
---------------
shall not apply with respect to any Loan of any Bank to the extent
that any circumstances of the type described therein occur
subsequent to a match-funding by such Bank of such Loan.
Section 2.14. Change of Lending Office; Replacement of Banks.
----------------------------------------------
(a) Each Bank agrees that it will use diligent efforts
to designate an alternate Lending Office with respect to (i) any of
its Eurodollar Loans affected by the matters or circumstances
described in Section 2.12, 2.13 or 2.17 or (ii) any of its Loans
------------------ ----
with respect to which the Company has become liable to pay any
additional amounts under Section 2.11(b), in either case to reduce
---------------
the liability of the Company or avoid the results provided
thereunder, so long as such designation is not disadvantageous to
such Bank as determined by such Bank in its sole discretion.
(b) Upon the giving of any notice by any Bank pursuant
to Section 2.12(a), 2.13(a), or 2.17(b), or upon the giving of any
notice by the Agent in connection with Section 2.13(b)(i) with
------------------
respect to any Bank, or upon the Company's becoming liable to pay
any additional amounts under Section 2.11(b) to any Bank, the
---------------
Company may, with the written consent of the Majority Banks, which
shall not unreasonably be withheld, replace such Bank with another
financial institution. The aggregate principal amount of the Loans
or Commitment of the Bank subject to replacement under this Section
-------
2.14(b) shall be included in the computation of "Majority Banks"
- -------
under this Section 2.14(b).
---------------
Section 2.15. Funding Losses. The Company shall compensate
--------------
each Bank, upon its written request (which request shall set forth
the reasonable basis for requesting such amounts and which request
shall, absent manifest error, be final, conclusive and binding upon
all of the parties hereto), for all losses, out-of-pocket expenses
and liabilities (including, without limitation, any interest paid
by such Bank to lenders of funds borrowed by it to make or carry
its Eurodollar Loans to the extent not recovered by the Bank in
connection with the re-employment of such funds and including loss
of anticipated profits), which the Bank may sustain: (i) if for any
reason (other than a default by such Bank) a borrowing of
Eurodollar Loans by the Company does not occur on the date
specified therefor in a Notice of Borrowing (whether or not
withdrawn), (ii) if any repayment or prepayment (or conversion
pursuant to Section 2.12 or 2.13) of any of the Eurodollar Loans
------------ ----
made to the Company occurs on a date which is not the last day of
an Interest Period applicable thereto, or (iii) if, for any reason,
the Company defaults in its obligation to repay its Eurodollar
Loans when required by the terms of this Agreement. Each Bank
agrees to use its best efforts to re-employ any funds borrowed by
it to make or carry its Eurodollar Loans in the event of any
occurrence of the type listed in clauses (i) through (iii) above.
Section 2.16. Sharing of Payments, Etc. If any Bank shall
-------------------
obtain any payment or reduction (including, without limitation, any
amounts received as adequate protection of a deposit treated as
<PAGE>
cash collateral under the Bankruptcy Code) of any obligation of the
Company hereunder (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise) in excess of its
ratable share of payments or reductions on account of such
obligations obtained by all the Banks, such Bank shall forthwith
(i) notify each of the other Banks and the Agent of such receipt,
and (ii) purchase from the other Banks such participations in the
affected obligations as shall be necessary to cause such purchasing
Bank to share the excess payment or reduction, net of costs
incurred in connection therewith, ratably with each of them;
provided, that if all or any portion of such excess payment or
- --------
reduction is thereafter recovered from such purchasing Bank or
additional costs are incurred, the purchase shall be rescinded and
the purchase price restored to the extent of such recovery or such
additional costs, but without interest. The Company agrees that
any Bank so purchasing a participation from another Bank pursuant
to this Section 2.16 may, to the fullest extent permitted by law,
------------
exercise all its rights of payment (including the right of set-off)
with respect to such participation as fully as if such Bank were
the direct creditor of the Company in the amount of such
participation.
Section 2.17. Yield Protection. (a) The Company shall pay
----------------
directly to any Bank from time to time such amounts as such Bank
may reasonably determine to be necessary to compensate it for any
increased costs which such Bank reasonably determines are
attributable to its obligation to make any Loans to the Company
hereunder as a result of any Regulatory Change occurring after the
Third Restatement Date requiring such Bank or its parent (if
applicable) to maintain capital (or reducing the rate of return on
such capital) or reserves in respect of such obligation pursuant to
any applicable law or regulation or any interpretation, directive
or request of any court or governmental or monetary authority. For
purposes of this Section, "Regulatory Change" shall mean, with
respect to any Bank, any change in United States federal or state,
or foreign, laws or regulations (including Regulation D) or the
adoption or making after the Third Restatement Date of any
interpretations, directives or requests applying to a class of
banks including such Bank of or under any United States federal or
state, or foreign, laws or regulations (whether or not having the
force of law) by any court or governmental or monetary authority
charged with the interpretation or administration thereof.
(b) Each Bank will notify the Company and the Agent of
any event occurring after the date of this Agreement which entitles
such Bank to compensation pursuant to this Section as promptly as
practicable after it obtains knowledge thereof and requests such
compensation. Such Bank shall submit a certificate as to the
amount of and reason for such compensation concurrently with its
delivery of written notice thereof. Determination and allocation
by any Bank for purposes of this Section of the effect of any such
requirements on its costs of maintaining its obligation to make
Loans hereunder, and of the additional amounts required to
compensate such Bank in respect thereof, shall be conclusive,
provided that such determinations and allocations are made on a
reasonable basis.
<PAGE>
ARTICLE III.
CONDITIONS TO BORROWINGS AND RESTATEMENT
----------------------------------------
The obligation of each Bank to make any Loan hereunder is
subject to the satisfaction of the following conditions:
Section 3.01. Conditions Precedent to Certain Loans. On the
-------------------------------------
date of the making by such Bank of any Loan, including the initial
Loan, to the Company that is part of a Borrowing the aggregate
principal amount of which on such date exceeds the principal amount
of Loans made to the Company (if any) maturing on such date (before
as well as after giving effect to such Loan):
(a) there shall exist no Default or Event of Default;
(b) all representations and warranties contained herein
shall be true and correct in all material respects with the same
effect as though such representations and warranties had been made
on and as of the date of such Loan;
(c) the aggregate book value, determined in accordance
with GAAP, on the date such Loan is made of all assets of the
Company (other than Margin Stock) not subject to any outstanding
Lien, shall be no less than the aggregate principal amount of the
Loans outstanding on the date of such Loan (taking into account the
principal amount of such Loan); and
(d) the Agent shall have received such other documents
or legal opinions as the Agent or any Bank or special counsel to
the Agent may reasonably request, all in form and substance
satisfactory to the Agent.
Each request for such a Borrowing and the acceptance by the Company
of the proceeds thereof shall constitute a representation and
warranty by the Company, as of the date of the Loans comprising
such Borrowing, that the conditions specified in subsections (a),
(b) and (c) of this Section 3.01 have been satisfied.
------------
Section 3.02. Conditions Precedent to Third Amendment and
-------------------------------------------
Restatement. The effectiveness of this Agreement shall be
- -----------
conditioned upon the satisfaction of the conditions specified in
Section 8.10 and upon the receipt by the Agent and the Banks of the
- ------------
following, each dated on or as of the Third Restatement Date or
such earlier date as is satisfactory to the Agent, in form and
substance satisfactory to the Agent, with an original thereof for
the Agent and with sufficient photocopies thereof for each Bank:
<PAGE>
(a) a certificate issued by the Secretary of State of
each of the States of New York and Illinois evidencing the good
standing of the Company in such states;
(b) an opinion of counsel to GATC, addressed to the
Agent and each of the Banks, substantially in the form of Exhibit
-------
B hereto;
- --------
(c) an opinion of Messrs. Mayer, Brown & Platt, special
New York counsel to the Company, addressed to the Agent and each of
the Banks, substantially in the form of Exhibit C hereto;
---------
(d) a certificate of the Secretary or an Assistant
Secretary of the Company certifying the name, title and true
signature of each officer of the Company authorized to execute this
Agreement and the other documents or certificates to be delivered
pursuant to this Agreement and the by-laws and resolutions of the
Company;
(e) a side letter executed by GATX, addressed to the
Agent and each of the Banks, substantially in the form of Exhibit D
---------
hereto;
(f) a letter executed by the Company, addressed to the
Agent, regarding fees payable to the Agent; and
(g) such other documents as the Agent or any Bank or
special counsel to the Agent may reasonably request, all in form
and substance satisfactory to the Agent.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
------------------------------
Section 4.01. Corporate Existence. The Company is a corpor
-------------------
ation duly organized, validly existing and in good standing under
the laws of the State of New York and has duly qualified and is in
good standing as a foreign corporation under the laws of each
jurisdiction where the failure to so qualify or be in good
standing, as the case may be, would have a material adverse effect
on the Company and its Subsidiaries taken as a whole, or the
ability of the Company to comply with the terms of this Agreement.
Section 4.02. Authorization of Agreement; No Violation. The
----------------------------------------
execution, delivery and performance by the Company of this
Agreement (a) are within the corporate powers of the Company, (b)
have been duly authorized by all necessary corporate action, and
(c) do not violate or create a default under law, or the
<PAGE>
Certificate of Incorporation or By-laws of the Company, or any
contractual provision binding on or affecting the Company or its
property, and each such representation will be true upon the
execution, delivery and performance by the Company of any Note made
by it.
Section 4.03. Governmental Approvals. No authorization or
-----------------------
approval or other action by, and no notice to or filing or
registration with, any governmental authority or regulatory body is
required in connection with the execution, delivery and performance
by the Company of this Agreement or will be required in connection
with the execution, delivery and performance by the Company of any
Note made by it.
Section 4.04. Binding Effect. This Agreement constitutes,
--------------
and any Notes to be made by the Company will constitute, the legal,
valid and binding obligations of the Company, enforceable against
the Company in accordance with their respective terms, except as
enforcement thereof may be subject to (a) the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors' rights generally, and (b) general
principles of equity (regardless of whether such enforcement is
sought in a proceeding in equity or at law).
Section 4.05. Financial Information.
---------------------
(a) The consolidated balance sheet of the Company
and its Subsidiaries as at December 31, 1993 and the related
consolidated statements of income, retained earnings and changes in
cash flow for the twelve (12) month period then ended, including in
each case the related schedules and footnotes, reported on by Ernst
& Young, true copies of which have been previously delivered to
each of the Banks, fairly present the consolidated financial
condition of the Company and its Subsidiaries as at the date
thereof and the consolidated results of operations and changes in
financial position for such period, in accordance with generally
accepted accounting principles applied on a consistent basis.
(b) Since December 31, 1993, there has been no
material adverse change in the business, financial condition,
results of operations or prospects of the Company and its
Subsidiaries taken as a whole.
Section 4.06. Litigation. There is no action, suit or
----------
proceeding, or any governmental investigation or any arbitration,
in each case pending or, to the knowledge of the Company,
threatened against the Company or any of its Subsidiaries or any
material property of any thereof before any court or arbitrator or
any governmental or administrative body, agency or official (a)
which challenges the validity of this Agreement or any Note upon
its issuance or (b) which if adversely determined would have a
material adverse effect on the financial condition or results of
operations of the Company and its Subsidiaries taken as a whole.
<PAGE>
Section 4.07. Employee Benefit Plans. Each Plan is in
----------------------
substantial compliance with the applicable provisions of ERISA and
the Code. No Pension Plan has an accumulated funding deficiency or
(solely with respect to conditions on the Effective Date) a waived
funding deficiency, in either case within the meaning of Section
412 or Section 418B of the Code, and no proceedings have been
instituted by the PBGC to terminate any Pension Plan, in any such
case involving an amount which will have a material adverse effect
upon the business, financial condition, results of operations or
prospects of the Company and its Subsidiaries taken as a whole.
Neither the Company nor any Subsidiary thereof nor any ERISA
Affiliate has incurred any material liability to or on account of
a Plan, and no condition exists which presents a material risk to
the Company, when taken as a whole together with its Subsidiaries,
of such a liability. No Plan which is a welfare plan (as defined
in Section 3(1) of ERISA) covering any participant or beneficiary
of any participant after the participant's termination of
employment (other than continuation coverage under Section 4980B of
the Code) provides for benefits in an amount which would reasonably
be expected to have a material adverse effect upon the business,
financial condition, results of operations or prospects of the
Company and its Subsidiaries taken as a whole.
ARTICLE V.
COVENANTS
---------
Section 5.01. Certain Affirmative Covenants. So long as any
-----------------------------
Bank has any Commitment hereunder or any Obligations shall remain
unpaid, the Company shall:
(a) Corporate Existence, Etc. Preserve and maintain,
------------------------
and cause each of its Subsidiaries to preserve and maintain, its
corporate existence, and all rights and franchises necessary for
the conduct of any material business in the normal course;
provided, however, that the corporate existence of any Subsidiary
- -------- -------
may be terminated if such termination is not disadvantageous to the
holders of any Indebtedness hereunder or the holders of any Notes.
(b) Compliance with Laws, Etc. Comply, and cause each
-------------------------
of its Subsidiaries to comply, in all material respects, with all
applicable laws, rules, regulations and orders.
(c) Payment of Taxes and Claims, Etc. Pay, and cause
--------------------------------
each of its Subsidiaries to pay, (i) all taxes, assessments and
governmental charges imposed upon it or upon its property, and (ii)
all claims (including, without limitation, claims for labor,
materials, supplies or services) which might, if unpaid, become a
Lien upon its property, unless, in each case, the validity or
amount thereof is being contested in good faith by appropriate
proceedings and the Company has maintained adequate reserves in
accordance with GAAP with respect thereto.
<PAGE>
(d) Keeping of Books. Keep, and cause each of its
----------------
Subsidiaries to keep, necessary and proper books of record and
account, containing complete and accurate entries in all material
respects of all financial and business transactions of the Company
and each Subsidiary thereof in accordance with sound accounting
practices.
(e) Visitation, Inspection, Etc. Permit any
---------------------------
representative of any Bank, upon three (3) days' prior notice, to
visit the principal offices of its business where financial and
legal records are maintained, to examine its books and financial
records, and to discuss its affairs, finances and accounts with its
officers, all at such reasonable times and as often as such Bank
may reasonably request.
(f) Insurance. Maintain or cause to be maintained with
---------
financially sound and reputable insurers, insurance with respect to
its properties and business, and the properties and business of its
Subsidiaries, against loss or damage of the kinds customarily
insured against by reputable companies in the same or similar
businesses, such insurance to be of such types and in such amounts
(with such deductible amounts) as is customary for such companies
under similar circumstances.
Section 5.02. Reporting Covenants. So long as any Bank has
-------------------
any Commitment hereunder or any Obligations of the Company shall
remain unpaid, the Company will furnish to each Bank:
(a) Annual Financial Statements. As soon as available
---------------------------
and in any event within one hundred five (105) days after the end
of each fiscal year of the Company:
(i) copies of the Annual Report on Form 10-K filed
by the Company for such fiscal year with the Securities and
Exchange Commission pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended, or, with respect to
any fiscal year of the Company for which the Company does not make
such a filing during such period, all information for such fiscal
year that would be required to be supplied for an Annual Report on
Form 10-K for such fiscal year were the Company to have filed such
an Annual Report for such fiscal year; and
(ii) consolidating balance sheets of the Company and
its Subsidiaries and the related statements of income of the
Company and its Subsidiaries for such fiscal year, setting forth in
each case in comparative form the figures for the previous fiscal
year, all in reasonable detail and certified by an Authorized
Officer of the Company that (A) they were the consolidating reports
that were used in connection with the preparation of the
consolidated audited financial statements as of the end of such
year as reported by the Company in its Annual Report on Form 10-K,
or as otherwise delivered pursuant to Section 5.02(a)(i), and (B)
------------------
such consolidating balance sheets and statements of income reflect
<PAGE>
the financial condition and results of operations of the Company or
Subsidiaries for which each was prepared, in each case at the end
of and for such fiscal year in accordance with GAAP.
(b) Quarterly Financial Statements. As soon as
------------------------------
available and in any event within fifty-five (55) days after the
end of each fiscal quarter of the Company:
(i) the Quarterly Report of the Company on Form
10-Q filed by the Company for such fiscal quarter with the
Securities and Exchange Commission pursuant to Section 13 or 15(d)
of the Securities and Exchange Act of 1934, as amended, or, with
respect to any fiscal quarter of the Company for which the Company
does not make such a filing during such period, all information for
such fiscal quarter that would be required to be supplied for a
Quarterly Report of the Company on Form 10-Q for such fiscal
quarter were the Company to have filed such a Quarterly Report for
such fiscal quarter; and
(ii) consolidating balance sheets of the Company and
its Subsidiaries as at the end of the corresponding quarter and the
related consolidating statements of income of the Company and its
Subsidiaries for such fiscal quarter and for the portion of the
Company's fiscal year ended at the end of such quarter, in each
case in comparative form for the figures for the corresponding
quarter, and (with respect to such statements of income), the
corresponding portion of the Company's previous fiscal year, all in
reasonable detail and certified by an Authorized Officer of the
Company that (A) such consolidating financial statements represent
the underlying detail of the consolidated unaudited financial
statements as of the end of such fiscal quarter as reported, or as
would have been reported, by the Company in its Quarterly Report on
Form 10-Q as filed, or as would have been filed, with the
Securities and Exchange Commission, and (B) such consolidating
balance sheets and statements of income reflect the financial
condition and results of operations of the Company or the
Subsidiaries for which each was prepared, in each case at the end
of or for such quarter and (where applicable) for such portion of
such fiscal year, on a basis and prepared in a manner consistent
with those employed for the annual statements referred to in
Section 5.02(a)(ii) above (subject to normal, year-end
- -------------------
adjustments).
(c) No Default/Compliance Certificate. Concurrently
---------------------------------
with the delivery of the financial statements referred to in
Sections 5.02(a) and (b) above, a certificate of an Authorized
- ---------------- ---
Officer of the Company:
(i) setting forth calculations establishing that
the Company is in compliance with the financial covenants set forth
in Section 5.03 or 5.04 of this Agreement, as the case may be, and
------------ ----
<PAGE>
(ii) stating that, to the best of his knowledge
after due inquiry, no Default or Event of Default has occurred and
is continuing during such period (or, if the same has occurred and
is continuing, a description thereof);
(d) Auditors' No Default Certificate. Together with the
---------------------------------
financial statements required pursuant to subsection (a) above, a
certificate (addressed to the Banks) of the accountants who
reported on the financial statements included in the Annual Report
referred to therein, to the effect that, based upon their audit and
any additional review, nothing came to their attention that would
indicate that there exists either an Event of Default or a Default
under this Agreement or if any such Event of Default or Default
exists, specifying the nature thereof;
(e) Notice of Default. Promptly after receiving
-----------------
knowledge of an Event of Default or a Default with respect to the
Company, a certificate of an Authorized Officer of the Company
specifying the nature thereof and the Company's proposed response
thereto;
(f) Shareholder Communications, Filings, Etc. Promptly
----------------------------------------
upon the mailing or filing thereof, copies of all financial
statements, reports and proxy statements mailed to the Company's
security-holders, and copies of all material registration
statements, periodic reports and other documents filed with the
Securities and Exchange Commission (or any successor thereto) or
any national securities exchange which are normally distributed to
the Company's security-holders;
(g) Litigation. Promptly after (i) the occurrence
----------
thereof, notice of the institution of, or any adverse development
in, any action, suit or proceeding or any governmental
investigation or any arbitration, before any court or arbitrator or
any governmental or administrative body, agency or official,
against the Company, any Subsidiary thereof or any material
property of any thereof, which action or adverse development could
be material with respect to the Company and its Subsidiaries taken
as a whole, or (ii) actual knowledge thereof, notice of the threat
of any such action, suit, proceeding, investigation or arbitration;
(h) ERISA. Promptly after actual knowledge thereof, (i)
-----
notice that an ERISA Termination Event or a "prohibited transac-
tion", as such term is defined in Section 4975 of the Code, with
respect to any Pension Plan has occurred, which such notice shall
specify the nature thereof and the Company's proposed response
thereto, and (ii) copies of any notice of the PBGC's intention to
terminate or to have a trustee appointed to administer any Pension
Plan; and
(i) Other Information. With reasonable promptness, such
-----------------
other information regarding the business, financial condition,
results of operations or prospects of the Company or its
Subsidiaries as any Bank may reasonably request from time to time
<PAGE>
including, without limitation, any public filings and/or public
disclosure documentation not required to be delivered pursuant to
Section 5.02(f).
- ---------------
Section 5.03. Financial Test Covenants for the Company. So
----------------------------------------
long as any Bank has any Commitment hereunder or any Obligations of
the Company hereunder shall remain unpaid, the Company will:
(a) Fixed Charges Coverage. Maintain a ratio of: (i)
---------------------- -----
the sum of Consolidated Pre-Tax Income and consolidated Interest
--- ---
Expense and Equity in Net Earnings of Affiliated Companies and
--- ---
fifty percent (50%) of Railcar Lease Expense; to (ii) the sum of
-- ---
consolidated Interest Expense and fifty percent (50%) of Railcar
---
Lease Expense; in each case of or by the Company and (in the case
of all consolidated measures) its Subsidiaries as of the end of
each fiscal quarter of the Company with respect to the preceding
four fiscal quarters taken as a single accounting period, in excess
of 1.6 to 1.0. For the purposes of determining this ratio, the
definition of Interest Expense shall not include interest with
respect to any obligation described in clause (c) of the definition
of Indebtedness unless and until such obligation becomes a direct
obligation of the Company.
(b) Tangible Net Worth. Maintain as of the last day of
------------------
each fiscal quarter of the Company a Consolidated Tangible Net
Worth greater than the sum of: (i) $500,000,000; plus (ii)
--- ----
twenty-five percent (25%) of the difference between the sum of the
quarterly measures of the Company's Consolidated Net Income for all
Designated Quarters of the Company during the period beginning with
July 1, 1992 and ending with the fiscal quarter of determination.
(c) Leverage. Not permit the sum (without duplication),
-------- ---
as of the last day of any month, of Long-Term Indebtedness for
Borrowed Money, Short-Term Indebtedness for Borrowed Money,
Intercompany Borrowings, and other interest-bearing Indebtedness
---
for Borrowed Money, in each case of the Company and its
Subsidiaries, and Unrelated Guaranties, determined on a
---
consolidated basis (such sum being referred to herein as the "Total
Indebtedness" of the Company), to exceed sixty percent (60%) of the
sum of the Company's Consolidated Capital Base, as of its most
- ---
recently ended fiscal quarter, and the Total Indebtedness of the
---
Company as of such last day of such month.
(d) Intercompany Advances. Not allow the aggregate
---------------------
amount of investments by the Company in, net advances by the
Company to, or receivables due to the Company from, GATX, to exceed
forty-six and seven-tenths percent (46.7%) of the Company's
Consolidated Capital Base (for the most recently ended fiscal
quarter of the Company). For the purposes of this subsection (d),
the term "GATX" shall include all Subsidiaries of GATX other than
the Company and its Subsidiaries.
<PAGE>
Section 5.04. Mergers, Etc. So long as any Bank has any
Commitment hereunder or any Obligations of the Company shall remain
unpaid: (a) the Company shall not merge into or consolidate with
any other Person or sell, lease or otherwise dispose of, in any
such case, other than in the normal course of business, all or any
substantial part of the property or assets (other than Margin
Stock) of the Company; and (b) the Company shall not permit any of
its Subsidiaries to merge into or consolidate with any other Person
or sell, lease or otherwise dispose of (in any such case, other
than in the normal course of business) any part of the property or
assets (other than Margin Stock) of any of its Subsidiaries, which
merger, consolidation, sale, lease or other disposition is material
to the Company and all its Subsidiaries taken as a whole; except
------
that this Section 5.04 shall not prohibit (i) a merger of any
------------
Subsidiary of the Company into the Company or any other Subsidiary
of the Company or a sale, lease or other disposition of all or any
substantial part of the property or assets of any Subsidiary of the
Company by such Subsidiary to the Company or any other Subsidiary
of the Company or (ii) any transaction described above as to which
the Agent and each Bank shall give its prior written consent, such
consent not to unreasonably be withheld.
Section 5.05. Special Negative Pledge Covenant.
---------------------------------
(a) So long as any Obligations of the Company shall be
or remain unpaid, the Company shall not permit or suffer at any
time the aggregate book value, determined in accordance with GAAP,
of all assets of the Company (other than Margin Stock) not subject
to any outstanding Lien to be less than the aggregate outstanding
principal amount of the Loans hereunder.
(b) Within fifty-five (55) days after the last day of
each of the first three fiscal quarters in any year and within 105
days after the last day of the fourth fiscal quarter of any year
for which on any such day any Indebtedness hereunder is or remains
unpaid, the Company will furnish to each Bank a certificate of an
Authorized Officer of the Company stating that at no time during
the quarter then ending was the aggregate book value, determined in
accordance with GAAP, of all assets of the Company (other than
Margin Stock) not subject to any outstanding Lien less than the
aggregate principal amount of the Loans outstanding at such time.
Section 5.06. Use of Proceeds. The proceeds of the Loans
---------------
constituting any Borrowing may be used as a back-up for the
Company's commercial paper program and for working capital and
general corporate purposes; provided, however, that no proceeds of
-------- -------
any such Loan may be used to acquire any shares of any class of the
capital stock of any corporation unless the Board of Directors of
such corporation has voted prior to the date of such Borrowing to
approve or recommend the consummation of such acquisition, nor may
any such proceeds be used to acquire any assets of any Subsidiary
of GATX.
<PAGE>
Section 5.07. Certain Transfers to Subsidiaries of the
----------------------------------------
Company. Notwithstanding any other provision hereof, so long as
- -------
any Bank has any Commitment hereunder or any Obligations of the
Company shall remain unpaid, the Company shall not sell, convey or
otherwise transfer any interest in any assets of the type
identified on any balance sheet of the Company as property, plant
or equipment, which assets were owned by the Company on the Second
Restatement Date, to any of its Subsidiaries, whether by
contribution to capital or any other means, direct or indirect, if
the book value of such assets on the date of such sale, conveyance
or transfer, combined with the book value of all such assets
subject to any previous or concurrent such sales, conveyances or
transfers is in excess of five percent (5%) of the aggregate book
value of all such assets owned by the Company on the last day of
the calendar month next preceding the Second Restatement Date.
ARTICLE VI.
EVENTS OF DEFAULT
-----------------
Upon the occurrence and during the continuance of any of the
following specified events (each an "Event of Default"):
Section 6.01. Payments. The Company shall fail to pay when
--------
due (including, without limitation, by mandatory prepayment) any
principal of the Loans made to the Company; the Company shall fail
to pay any interest on the Loans made to the Company within one (1)
day of the date when due (including interest due with respect to
mandatory prepayment of principal); or the Company shall fail to
pay within five (5) Business Days after the due date thereof any
fee or any other amount payable hereunder, unless contested in good
faith in appropriate proceedings; or
Section 6.02. Covenants Without Notice. The Company shall
------------------------
fail to observe or perform any covenant or agreement contained in
Section 5.03, 5.04, 5.05(a), 5.06 or 5.07; or
- ------------------------------- ----
Section 6.03. Other Covenants. The Company shall fail to
---------------
observe or perform any covenant or agreement, other than those
referred to in Sections 6.01 and 6.02, and, if capable of being
------------- ----
remedied, such failure shall remain unremedied for thirty (30) days
after the earlier of (i) the Company's obtaining actual knowledge
thereof, or (ii) written notice thereof shall have been given to
the Company by any Bank or the Agent; or
Section 6.04. Representations. Any representation, warranty
---------------
or statement made herein or otherwise in writing or deemed
(pursuant to Section 3.01) to be made by the Company or any of its
------------
officers under or in connection with this Agreement shall have been
or shall be incorrect in any material respect when made or deemed
to be made; or
<PAGE>
Section 6.05. Non-Payments of Other Indebtedness. The
----------------------------------
Company or any of its Subsidiaries shall fail to make any payment
of principal of or interest on any Indebtedness for Borrowed Money
of the Company (other than any Indebtedness under this Agreement)
or such Subsidiary exceeding $5,000,000 in the aggregate within
three (3) Business Days of the date when due (whether at stated
maturity, by acceleration, on demand or otherwise) after giving
effect to any applicable grace period; or
Section 6.06. Defaults Under Other Agreements. The Company
-------------------------------
or any of its Subsidiaries shall fail to observe or perform any
financial covenant contained in any agreement or instrument
relating to any of its Indebtedness in excess of $5,000,000 in the
aggregate within any applicable grace period, if the effect of such
failure is to accelerate, or to permit the holder of such
Indebtedness or any other Person to accelerate, the maturity of
such Indebtedness; or any such Indebtedness that is material shall
be required to be prepaid (other than by a regularly scheduled
required prepayment and other than in connection with events of the
type described in Sections 2.11(b)(i), 2.12, 2.13 and 2.17) in
------------------- ---- ---- ----
whole or in part, by acceleration or otherwise, prior to its stated
maturity; or
Section 6.07. Failure to Pay, Etc. The Company or any of its
-------------------
Subsidiaries shall fail to pay, or shall state in writing or by
authorized public announcement that it shall not or is unable to
pay, its debts generally as they become due; or
Section 6.08. Bankruptcy. The Company or any of its
----------
Subsidiaries shall commence a voluntary case concerning itself
under Title 11 of the United States Code entitled "Bankruptcy" as
now or hereafter in effect, or any successor thereto (the
"Bankruptcy Code"); or an involuntary case is commenced against the
Company or any of its Subsidiaries and the petition is not
controverted within twenty (20) days, or is not dismissed within
sixty (60) days, after commencement of the case; or a custodian (as
defined in the Bankruptcy Code) is appointed for, or takes charge
of, all or any substantial part of the property of the Company or
any of its Subsidiaries; or the Company or any of its Subsidiaries
commences any other proceeding under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction
whether now or hereafter in effect relating to the Company or such
Subsidiary or there is commenced against the Company or any of its
Subsidiaries any such proceeding which remains undismissed for a
period of sixty (60) days; or the Company or any of its
Subsidiaries is adjudicated insolvent or bankrupt; or any order of
relief or other order approving any such case or proceeding is
entered; or the Company or any of its Subsidiaries suffers any
appointment of any custodian or the like for it or any substantial
part of its property to continue undischarged or unstayed for a
period of sixty (60) days; or the Company or any of its
<PAGE>
Subsidiaries makes a general assignment for the benefit of
creditors; or the Company or any of its Subsidiaries shall by any
act or conduct indicate its consent to, approval of or acquiescence
in any of the foregoing; or any corporate action is taken by the
Company or any of its Subsidiaries for the purpose of effecting any
of the foregoing; or
Section 6.09. ERISA. A Pension Plan shall fail to maintain
-----
the minimum funding standard required by Section 412 of the Code
for any plan year or a waiver of such standard is sought or granted
under Section 412(d), or a Pension Plan is, shall have been or is
likely to be, terminated or the subject of termination proceedings
under ERISA, or the Company, any Subsidiary of the Company or an
ERISA Affiliate has incurred or is likely to incur a liability to
or on account of a Plan, and there shall result from any such event
or events either a liability or a material risk of incurring a
liability which will have a material adverse effect upon the
business, financial condition, results of operations or prospects
of the Company and its Subsidiaries taken as a whole; or
Section 6.10. Judgments. A judgment or order for the payment
---------
of money in excess of $5,000,000 or otherwise materially adverse to
the business, financial condition, results of operations or
prospects of the Company shall be rendered against the Company or
any of its Subsidiaries and such judgment or order shall continue
unsatisfied (in the case of a money judgment), uncovered by
insurance adequate in amount in the judgment of the Required Banks
to cover the portion of such judgment in excess of $5,000,000, and
in effect for a period of thirty (30) days during which execution
shall not be effectively stayed or deferred (whether by action of
a court, by agreement or otherwise);
Section 6.11. Change of Control; Merger. GATX shall (i)
-------------------------
sell, lease or otherwise dispose of or encumber any of the shares
of any class of the capital stock of the Company, (ii) merge into
or consolidate with any other Person or sell, lease or otherwise
dispose of, in any such case, other than in the normal course of
business, all or any substantial part of its property or assets; or
(iii) permit any of its Subsidiaries to merge into or consolidate
with any other Person or sell, lease or otherwise dispose of (in
any such case, other than in the normal course of business) any
part of the property or assets of any of its Subsidiaries, which
merger, consolidation, sale, lease or other disposition is material
to GATX and all of its Subsidiaries taken as a whole, other than:
(A) a merger of any Subsidiary of GATX (except the
Company) into GATX or any other Subsidiary of GATX; or
(B) a sale, lease or other disposition of all or
any substantial part of the property or assets of any
Subsidiary of GATX (except the Company) by such
<PAGE>
Subsidiary to GATX or any other Subsidiary of GATX, to
the extent that any such transaction described in this
clause (B) or in clause (A) above would not have a
material adverse effect upon (x) the business,
properties, financial condition, prospects or operations
of the Company or any of its Subsidiaries or (y) the
ability of the Company to repay the Indebtedness incurred
hereunder;
except, in each case, for any such transaction to which the Agent
and each Bank shall have given its prior written consent, which
consent shall not be unreasonably withheld;
then, and in any such event, and at any time thereafter, if any
Event of Default shall then be continuing, the Agent, upon the
written or telex request of the Required Banks, shall, by written
notice to the Company, take any or all of the following actions,
without prejudice to the rights of the Agent, any Bank or the
holder of any Note to enforce its claims against the Company: (i)
declare the Commitments terminated, whereupon the Commitment of
each Bank shall terminate immediately and any Facility Fee shall
forthwith become due and payable without any other notice of any
kind; or (ii) declare the principal of and any accrued interest on
the Loans, and all other obligations owing hereunder, to be,
whereupon the same shall become, forthwith due and payable without
presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Company; provided, that, if an Event
of Default specified in Section 6.08 shall occur, the result which
------------
would occur upon the giving of written notice by the Agent to the
Company, as specified in clauses (i) and (ii) above, shall occur
automatically without the giving of any such notice.
ARTICLE VII.
THE AGENT
---------
Section 7.01. Appointment of Agent. Each Bank hereby
--------------------
designates Bankers Trust Company as Agent to act as herein
specified. Each Bank hereby irrevocably authorizes, and each
holder of any Note by the acceptance of such Note shall be deemed
irrevocably to authorize, the Agent to take such action on its
behalf under the provisions of this Agreement, the Notes and any
other instruments and agreements referred to herein and to exercise
such powers and to perform such duties hereunder and thereunder as
are specifically delegated to or required of the Agent by the terms
hereof and thereof and such other powers as are reasonably
incidental thereto. The Agent may perform any of its duties
hereunder by or through its agents or employees. Pursuant to a
separate agreement with the Company, the Agent has received for its
own account a fee for acting as agent hereunder.
Section 7.02. Nature of Duties of Agent. The Agent shall
-------------------------
have no duties or responsibilities except those expressly set forth
in this Agreement. Neither the Agent nor any of its officers,
directors, employees or agents shall be liable for any action taken
<PAGE>
or omitted by it as such hereunder or in connection herewith,
unless caused by its or their gross negligence or willful
misconduct. The duties of the Agent shall be mechanical and
administrative in nature; the Agent shall not have by reason of
this Agreement a fiduciary relationship in respect of any Bank; and
nothing in this Agreement, expressed or implied, is intended to or
shall be so construed as to impose upon the Agent any obligations
in respect of this Agreement except as expressly set forth herein.
Section 7.03. Lack of Reliance on the Agent.
-----------------------------
(a) Independently and without reliance upon the Agent,
each Bank, to the extent it deems appropriate, has made and shall
continue to make (i) its own independent investigation of the
financial condition and affairs of the Company and its Subsidiaries
in connection with the taking or not taking of any action in
connection herewith, and (ii) its own appraisal of the
creditworthiness of the Company and its Subsidiaries, and, except
as expressly provided in this Agreement, the Agent shall have no
duty or responsibility, either initially or on a continuing basis,
to provide any Bank with any credit or other information with
respect thereto, whether coming into its possession before the
making of the Loans or at any time or times thereafter.
(b) The Agent shall not be responsible to any Bank or
any other Person for any recitals, statements, information,
representations or warranties herein or in any document,
certificate or other writing delivered in connection herewith or
for the execution, effectiveness, genuineness, validity,
enforceability, collectibility, priority or sufficiency of this
Agreement or the Notes or the financial condition of the Company or
its Subsidiaries or be required to make any inquiry concerning
either the performance or observance of any of the terms,
provisions or conditions of this Agreement or the Notes, or the
financial condition of the Company or its Subsidiaries, or the
existence or possible existence of any Default or Event of Default.
Section 7.04. Certain Rights of the Agent. If the Agent
---------------------------
shall request instructions from the Required Banks with respect to
any act or action (including the failure to act) in connection with
this Agreement, the Agent shall be entitled to refrain from such
act or taking such action unless and until the Agent shall have
received instructions from the Required Banks, and the Agent shall
not incur liability to any Person by reason of so refraining.
Without limiting the foregoing, no Bank shall have any right of
action whatsoever against the Agent as a result of the Agent acting
or refraining from acting hereunder in accordance with the
instructions of the Required Banks.
Section 7.05. Reliance by Agent. The Agent shall be entitled
-----------------
to rely, and shall be fully protected in relying, upon any note,
writing, resolution, notice, statement, certificate, telex,
teletype or telecopier message, cablegram, radiogram, order or
<PAGE>
other documentary, teletransmission or telephone message believed
by it to be genuine and correct and to have been signed, sent or
made by the proper Person. The Agent may consult with legal
counsel (including counsel for the Company), independent public
accountants (including those retained by the Company) and other
experts selected by it and shall not be liable for any action taken
or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
Section 7.06. Indemnification of Agent. To the extent the
------------------------
Agent is not reimbursed and indemnified by the Company, each Bank
will reimburse and indemnify the Agent, in accordance with its
Commitment Percentage, for and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including counsel fees and disbursements) or
disbursements of any kind or nature whatsoever which may be imposed
on, incurred by or asserted against the Agent in performing its
duties hereunder, in any way relating to or arising out of this
Agreement; provided, that no Bank shall be liable for any portion
--------
of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements
resulting solely from the Agent's gross negligence or willful
misconduct.
Section 7.07. The Agent in its Individual Capacity. With
------------------------------------
respect to its obligation to lend under this Agreement and the
Loans made by and any Notes issued to it, the Agent shall have the
same rights and powers hereunder as any other Bank or holder of a
Note and may exercise the same as though it were not performing the
duties specified herein, and the terms "Banks", "Required Banks",
"holders of Notes" or any similar terms shall, unless the context
clearly otherwise indicates, include the Agent in its individual
capacity. The Agent may accept deposits from, lend money to, and
generally engage in any kind of banking, trust, financial advisory
or other business with the Company, or with any Subsidiary or
affiliate of the Company, as if it were not performing the duties
specified herein and may accept fees and other consideration from
the Company or its Subsidiaries for services in connection with
this Agreement and otherwise without having to account for the same
to the Banks.
Section 7.08. Successor Agent.
---------------
(a) The Agent may resign at any time by giving written
notice thereof to the Banks and the Company and may be removed at
any time with or without cause by the Required Banks. Upon any
such resignation or removal, the Company may nominate a successor
Agent subject to the approval of the Required Banks. If the
Company does not nominate a successor Agent within ten (10) days of
such notice or removal, the Required Banks shall have the right to
appoint a successor Agent. If no successor Agent shall have been
appointed as provided above, and shall have accepted such
<PAGE>
appointment, within thirty (30) days after the retiring Agent's
giving of notice of resignation or the Required Banks' removal of
the retiring Agent, then, upon five (5) days' notice to the
Company, the retiring Agent may, on behalf of the Banks, appoint a
successor Agent, which shall be a bank which maintains an office in
the United States, or a commercial bank organized under the laws of
the United States of America or of any State thereof, or any
Affiliate of such bank, having a combined capital and surplus of at
least $100,000,000.
(b) Upon the acceptance of any appointment as Agent
hereunder by a successor agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent
shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation or removal
hereunder as Agent, the provisions of this Article VII shall inure
-----------
to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement.
Section 7.09. Holders of Notes. The Agent may deem and treat
----------------
the payee of any Note as the owner thereof for all purposes hereof
unless and until a written notice of the assignment or transfer
thereof shall have been filed with the Agent. Any request,
authority or consent of any Person who, at the time of making such
request or giving such authority or consent, is the holder of any
Note shall be conclusive and binding on any subsequent holder,
transferee or assignee of such Note or of any Note or notes issued
in exchange therefor.
ARTICLE VIII.
MISCELLANEOUS
-------------
Section 8.01. Notices. All notices, requests and other
-------
communications to any party hereunder shall be in writing
(including bank wire, telex, telecopy or similar teletransmission
or writing) and shall be given to such party at its address,
telecopy number or telex number set forth on the signature pages
hereof or such other address, telecopy number or telex number as
such party may hereafter specify by notice to the Agent and the
Company. Each such notice, request or other communication shall be
effective (i) if given by telex, when such telex is transmitted to
the telex number specified in this Section and the appropriate
answerback is received, (ii) if given by mail, seventy-two (72)
hours after such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid, (iii) if given by
telecopy, when such telecopy is transmitted to the telecopy number
specified in this Section or (iv) if given by any other means
(including, without limitation, by air courier), when delivered at
the address specified in this Section; provided, that notices to
--------
the Agent shall not be effective until received.
<PAGE>
Section 8.02. Amendments, Etc.
----------
(a) Except as otherwise provided herein, no amendment or
waiver of any provision of this Agreement or any Notes, nor consent
to any departure by the Company therefrom, shall in any event be
effective unless the same shall be in writing and signed by the
Company and the Required Banks, and then such waiver or consent
shall be effective only in the specific instance and for the
specific purpose for which given; provided, that no amendment,
--------
waiver or consent shall, unless in writing and signed by the
Company and each Bank, do any of the following: (i) waive any of
the conditions specified in Article III, (ii) increase the
-----------
Commitments of the Banks or subject the Banks to any additional
obligations, (iii) reduce the principal of, or interest on, the
Loans or any fees hereunder, (iv) postpone any date fixed for any
payment in respect of principal of, or interest on, the Loans or
any fees hereunder, (v) change the percentage of the Commitments or
of the aggregate unpaid principal amount of the Loans, or the
number or identity of Banks, which shall be required for the Banks
or any of them to take any action hereunder, or (vi) amend this
Section 8.02 or Section 8.06, or the definitions of the terms used
- ------------ ------------
in such Sections; and provided, further, that no amendment, waiver
-------- -------
or consent shall, unless in writing and signed by the Agent in
addition to the Banks required hereinabove to take such action,
affect the rights or duties of the Agent under this Agreement or
any Note.
(b) If any changes in accounting principles from those
used in the preparation of the financial statements referred to in
Sections 4.05(a) and 4.05(b) are hereafter occasioned by the
- ---------------- -------
promulgation of rules, regulations, pronouncements or opinions by
or are otherwise required by the Financial Accounting Standards
Board or the American Institute of Certified Public Accountants (or
successors thereto or agencies with similar functions), and any of
such changes results in a change in the method of calculation of,
or affects the results of such calculation of, any of the financial
covenants, standards or terms found in Section 5.03 hereof or
------------
elsewhere herein, then the parties hereto agree to enter into and
pursue in good faith negotiations in order to amend such financial
covenants, standards or terms so as to equitably reflect such
changes, with the desired result that the criteria for evaluating
the financial condition and results of operations of the Company
shall be the same after such changes as if such changes had not
been made.
Section 8.03. No Waiver; Remedies Cumulative. No failure or
--------- -------------------
delay on the part of the Agent or any Bank or any holder of a Note
in exercising any right or remedy hereunder and no course of
dealing between the Company and the Agent or any Bank or the holder
of a Note shall operate as a waiver thereof, nor shall any single
or partial exercise of any right or remedy hereunder or under any
Note preclude any other or further exercise thereof or the exercise
<PAGE>
of any other right or remedy hereunder. The rights and remedies
herein expressly provided are cumulative and not exclusive of any
rights or remedies which the Agent or any Bank or the holder of a
Note would otherwise have. No notice to or demand on the Company
not required hereunder or under any Notes in any case shall entitle
the Company to any other or further notice or demand in similar or
other circumstances or constitute a waiver of the rights of the
Agent, the Banks or the holder of a Note to any other or further
action in any circumstances without notice or demand.
Section 8.04. Payment of Expenses, Etc. The Company shall:
------------------------
(i) whether or not the transactions hereby contemplated
are consummated, pay all reasonable out-of-pocket costs and
expenses of the Agent (both before and after the execution
hereof) in connection with the negotiation, preparation,
execution and delivery of, preservation of rights under, the
preparation of amendments, waivers, consents and similar
documents with respect to, the enforcement of, and, after a
Default, the refinancing, renegotiation or restructuring of,
this Agreement and the documents and instruments referred to
herein and any amendment, waiver or consent relating hereto or
thereto (including, without limitation, the reasonable fees
and disbursements of counsel (including for services regarding
post-closing administration and advice from time to time after
the closing hereunder regarding rights and duties of the Agent
and the Banks with respect to this Agreement and including
allocated costs of internal counsel) for the Agent and in the
case of enforcement for any of the Banks) but not including
costs and expenses in connection with day-to-day loan
administration not covered by the terms of this clause (i);
(ii) pay and hold each of the Banks harmless from and
against any and all present and future stamp and other similar
taxes with respect to the foregoing matters and save each Bank
harmless from and against any and all liabilities with respect
to or resulting from any delay or omission to pay such taxes;
and
(iii) indemnify the Agent and each Bank, its officers,
directors, employees, representatives and agents from, and
hold each of them harmless against, any and all costs, losses,
liabilities, claims, damages or expenses incurred by any of
them (whether or not any of them is designated a party
thereto) arising out of any of the transactions contemplated
by this Agreement, including, without limitation, by reason of
any investigation, litigation or other proceeding related to
any actual or proposed use by the Company or any Subsidiary
thereof of the proceeds of any of the Loans or the entering
into and performing by the Company of this Agreement or any
Notes, and to reimburse each such Person for the reasonable
fees and disbursements of counsel (including allocated costs
of internal counsel) incurred in connection with any such
investigation, litigation or other proceeding, except to the
------
<PAGE>
extent such costs, losses, liabilities, claims, damages or
expenses result principally from the gross negligence or
willful misconduct of the Agent or such Bank, as the case
may be.
If any action, suit or proceeding arising from any of the foregoing
is brought against the Agent, any Bank or any other Person
indemnified or intended to be indemnified pursuant to this
Section 8.04, the Company will, if requested by the Agent, any Bank
- ------------
or any such indemnified Person, resist and defend such action, suit
or proceeding or cause the same to be resisted and defended by
counsel reasonably satisfactory to the Person or Persons
indemnified or intended to be indemnified. Each indemnified Person
shall, if the Agent, a Bank or other indemnified Person has made
the request described in the preceding sentence and such request
has not been complied with, have the right to employ its own
counsel (or (but not as well as) staff counsel) to investigate and
control the defense of any matter covered by such indemnity and the
reasonable fees and expenses of such counsel shall be at the
expense of the indemnifying party. If the Company shall fail to do
any act or thing which it has covenanted to do hereunder or any
representation or warranty on the part of the Company contained
herein shall be breached, the Agent may (but shall not be obligated
to) do the same or cause it to be done or remedy any such breach,
and may expend its funds for such purpose, and will use its best
efforts to give prompt written notice to the Company that it
proposes to take such action. Any and all amounts so expended by
the Agent shall be repayable to it by the Company promptly upon the
Agent's demand therefor and shall be considered Obligations
hereunder; provided, that the Company may request reasonable
--------
supporting information with respect to any such payment demanded.
If any such amount is not reimbursed to the Agent within two (2)
days after the next date of any Borrowing hereunder which is at
least ten (10) Business Days after demand therefor, or, if such
supporting information is so requested, within the date when such
supporting information is provided to the Company, the unpaid
amount outstanding and due shall bear interest for all periods
thereafter until paid at the Base Rate in effect from time to time.
If and to the extent that the obligations of the Company under this
Section 8.04 are unenforceable for any reason, the Company hereby
- ------------
agrees to make the maximum contribution to the payment and
satisfaction of such obligations which is permissible under
applicable law. The Company's obligations under this Section 8.04
------------
shall survive any termination of this Agreement and the payment of
the Obligations.
Section 8.05. Adjustment; Set-Off.
-------------------
(a) If any Bank (a "Benefitted Bank") shall at any time
receive any payment in respect of all or part of its Loans or
interest thereon, or receive any collateral (or proceeds thereof)
in respect thereof (whether voluntarily or involuntarily, by set-
<PAGE>
off, pursuant to events or proceedings of the nature referred to in
Section 6.08 or otherwise) in a greater proportion than any such
- ------------
payment to and collateral (or proceeds thereof) received by any
other Bank in respect of such other Bank's Loans or interest
thereon, such Benefitted Bank shall purchase for cash from the
other Banks such portion of each such other Bank's Loans, or shall
provide such other Banks with the benefits of any such collateral,
or the proceeds thereof, as shall be necessary to cause such
Benefitted Bank to share the excess payment or benefits of such
collateral or proceeds ratably with each of the Banks; provided,
--------
however, that if all or any portion of such excess payment or
- -------
benefits is thereafter recovered from such Benefitted Bank, such
purchase shall be rescinded, and the purchase price and benefits
returned, to the extent of such recovery, but without interest.
The Company agrees that each Bank so purchasing a portion of
another Bank's Loans, may exercise all rights of payment
(including, without limitation, rights of set-off) with respect to
such portion as fully as if such Bank were the direct holder of
such portion.
(b) In addition to any rights and remedies of the Banks
provided by law, each Bank shall have the right, without prior
notice to the Company, any such notice being expressly waived by
the Company, upon the filing of a petition under any of the
provisions of the federal bankruptcy act or amendments thereto, by
or against, or the occurrence of an Event of Default with respect
to, the making of an assignment for the benefit of creditors by,
the application for the appointment, or the appointment, of any
receiver of, or of any of the property of, the issuance of any
execution against any of the property of, the issuance of a
subpoena or order, in supplementary proceedings, against or with
respect to any of the property of, or the issuance of a warrant of
attachment against the property of, the Company, to set-off and
apply against any Obligations, whether matured or unmatured, of the
Company to such Bank, any amount owing from such Bank to the
Company, at or at any time after, the happening of any of the
above-mentioned events, and the aforesaid right of set-off may be
exercised by such Bank against the Company or against any trustee
in bankruptcy, debtor in possession, assignee for the benefit of
creditors, receivers, or execution, judgment or attachment creditor
of the Company, or against anyone else claiming through or against
the Company or such trustee in bankruptcy, debtor in possession,
assignee for the benefit of creditors, receivers, or execution,
judgment or attachment creditor, notwithstanding the fact that such
right of set-off shall not have been exercised by such Bank prior
to the making, filing or issuance, or service upon such Bank of, or
of notice of, any such petition, assignment for the benefit of
creditors, appointment or application for the appointment of a
receiver, or issuance of execution, subpoena, order or warrant.
Each Bank agrees promptly to notify the Company and the Agent after
any such set-off and application made by such Bank; provided, that
--------
the failure to give such notice shall not affect the validity of
such set-off and application.
<PAGE>
The Company expressly agrees that to the extent the
Company makes a payment or payments hereunder or under any Note and
such payment or payments, or any part thereof, are subsequently
invalidated, declared to be fraudulent or preferential, set aside
or are required to be repaid to a trustee, receiver, or any other
party under any bankruptcy act, state or federal law, common law or
equitable cause, then to the extent of such payment or repayment,
the Obligations to the Banks or part thereof intended to be
satisfied shall be revived and continued in full force and effect
as if said payment or payments had not been made.
Section 8.06. Benefit of Agreement.
--------------------
(a) This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the respective successors and
assigns of the parties hereto, provided that the Company may not
assign or transfer any of its interest hereunder without the prior
written consent of the Banks.
(b) Subject to subsection (f) of this Section 8.06
------------
below, any Bank may make, carry or transfer Loans at, to or for the
account of, any of its branch offices or the office of an Affiliate
of such Bank.
(c) Any Bank may at any time assign part or all of its
rights and delegate such part or all of its obligations under this
Agreement to any other financial institution that is at such time
a Bank hereunder, and any Bank may assign part or all of its rights
and delegate such part or all of its obligations under this
Agreement to any other Person with the prior written consent of the
Agent and the Company, which consent may not be unreasonably
withheld or delayed; provided, that any Bank may at any time,
--------
without the consent of the Company or the Agent, assign all or any
portion of its rights under this Agreement or any Note to a Federal
Reserve Bank and no such assignment shall release the transferor
Bank from its obligations hereunder; provided, further, that (i)
each such assignment (other than to another Bank) shall be in the
amount of $10,000,000 or any larger amount of such Bank's rights
and obligations under this Agreement; (ii) an administrative fee of
$2,000 shall have been paid to BTCo., as Agent, for BTCo.'s
account, by the assigning Bank or its assignee in connection with
each such assignment; and (iii) the parties to each such assignment
shall execute and deliver to the Agent (with a copy to the Company)
an assignment and assumption agreement substantially in the form of
Exhibit E hereto. Any Bank may sell participations in all or any
- ---------
part of any Loan or Loans made by it or its Commitment or any other
interest herein or in any Note to another bank or other entity. In
the case of an assignment, upon the effectiveness of the assignment
agreement relating thereto, the assignee shall have, to the extent
of such assignment (unless otherwise provided therein), the same
rights and benefits as it would have if it were a Bank hereunder
and the holder of Indebtedness hereunder. In the case of a
participation, the participant shall not have any rights under this
Agreement, any Note or any other document delivered in connection
herewith (the participant's rights against such Bank in respect of
such participation to be those set forth in the agreement executed
by such Bank in favor of the participant relating thereto) and all
amounts payable by the Company under Sections 2.13, 2.15 and 2.17
-------------- ---- ----
<PAGE>
hereof shall be determined as if the Bank had not sold such
participation. Such Bank may (but shall not be obligated to)
furnish any information concerning the Company in the possession of
such Bank from time to time to assignees and participants
(including prospective assignees and participants).
(d) If any Bank (an "Acquiror Bank") acquires more than
fifty percent (50%) of the shares of any class of the capital stock
of, or otherwise acquires control of, another Bank (an "Acquiree
Bank"), whether by merger, consolidation or otherwise, then the
Company may, pursuant to the terms of this Section 8.06(d), obtain
--------------
the agreement of any additional financial institution (other than
any Bank) to provide any Loan or Loans in replacement of any Loan
or Loans from the Acquiree Bank; provided, that the aggregate
--------
principal amount of the Loans outstanding hereunder shall never
exceed $250,000,000. To the extent that the Commitment to be
assumed by any such financial institution, combined with the
Commitments of all other financial institutions that have been
added pursuant to this Section 8.06(d) from and after the Third
---------------
Restatement Date, is less than or equal to $80,000,000, the
addition of such financial institution shall be in the sole
discretion of the Company. To the extent that the Commitment to be
assumed by any such financial institution, combined with the
Commitments of all such other financial institutions that have been
added pursuant to this Section 8.06(d) from and after the Third
---------------
Restatement Date, is greater than $80,000,000, or if the Company
has not selected a replacement financial institution within ninety
(90) days after the consummation of any such merger or
consolidation, then the addition of such financial institution
pursuant to this Section 8.06(d) shall be by written amendment to
---------------
this Agreement subject to the concurrence of the Agent, the Company
and the Majority Banks. For the purposes of this Section 8.06(d),
---------------
no Bank's Loans or Commitment shall be considered in the
computation of "Majority Banks" if such Loans are or Commitment is
to be replaced by another financial institution pursuant to this
Section 8.06(d).
- ---------------
(e) Whenever pursuant to the terms of Section 2.14(b) or
---------------
8.06(d), or any other provision hereof, any financial institution
- -------
(a "Replacement Bank") is appointed or otherwise chosen to replace
a Bank (a "Former Bank") hereunder:
<PAGE>
(i) the Former Bank shall transfer by means of
a written instrument of assignment (reasonably satisfactory
to the Majority Banks) all of its right, title and interest
in, to and under this Agreement and any Notes issued to it
to the Replacement Bank and shall deliver such Notes to
the Replacement Bank; and
(ii) upon the receipt by the Agent of a written
agreement of assumption (reasonably satisfactory to the
Majority Banks) by any Replacement Bank to be bound by the
terms of this Agreement from and after the date of the
aforesaid assignment and assumption as fully as if such
Replacement Bank were an original Bank party hereto, all
rights and obligations of the Former Bank under this Agreement
and any Notes issued to such Former Bank shall be deemed for
all purposes under this Agreement and such Notes to be the
rights and obligations of the Replacement Bank, and the Former
Bank shall be released from all obligations and divested of
all rights (except such as may have accrued prior to such
assignment and assumption) under this Agreement.
(f) The Company shall not be obligated under this
Agreement to (i) make any greater payment to a Bank which changes
any Lending Office than such Bank would have been entitled to
receive if such Lending Office had not been changed or (ii) make
any greater payment to an assignee of a Bank than such Bank would
have been entitled to receive with respect to the rights assigned
to such assignee, unless such Lending Office was changed or such
assignment was made (A) with the Company's prior written consent
specifically referring to this Section 8.06(f), (B) at the request
---------------
of the Company, (C) to mitigate or avoid the suspension of the
obligations of a Bank or the requirement of payment of increased
costs in the circumstances contemplated by Section 2.11(b), 2.12,
--------------- ----
2.13 or 2.17 or (D) at a time when the circumstances giving rise to
- ---- ----
such greater payment did not exist.
Section 8.07. Governing Law; Submission to Jurisdiction.
-----------------------------------------
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND THE NOTES SHALL BE CONSTRUED IN ACCORDANCE
WITH AND BE GOVERNED BY THE LAW (WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAWS PRINCIPLES THEREOF) OF THE STATE OF NEW YORK.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR THE NOTES OR ANY DOCUMENT RELATED THERETO MAY BE
BROUGHT IN ANY COURT OF THE STATE OF NEW YORK OR OF THE UNITED
STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, IN EITHER
CASE LOCATED IN THE CITY OF NEW YORK IN THE BOROUGH OF MANHATTAN,
AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE COMPANY
HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY
AND UNCONDITIONALLY, AND SUBMITS TO, THE JURISDICTION OF THE
AFORESAID COURTS. THE PARTIES HERETO HEREBY IRREVOCABLY AND
<PAGE>
UNCONDITIONALLY WAIVE TRIAL BY JURY, AND THE COMPANY HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY OBJECTION, INCLUDING,
WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED
ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OR MAINTAINING OF ANY SUCH ACTION OR
PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS.
(c) The Company irrevocably and unconditionally consents
to the service of process in any action or proceeding with respect
to this Agreement or the Notes or any document related to any
thereof, by the mailing of copies of such process by registered or
certified mail, postage prepaid, to the Company at its address set
forth opposite its signature below, such service to become
effective ten (10) days after such mailing.
(d) Nothing herein shall affect the right of the Agent,
the Company, any Bank or any holder of a Note to serve process in
any other manner permitted by law or to commence legal proceedings
or otherwise proceed against any party in any other jurisdiction.
Section 8.08. Independent Nature of Banks' Rights. The
-----------------------------------
amounts payable at any time hereunder to each Bank shall be a
separate and independent debt, and each Bank shall be entitled to
protect and enforce its rights arising out of this Agreement, and
it shall not be necessary for any other Bank to be joined as an
additional party in any proceeding for such purpose. Nothing
contained in this Agreement and no action taken by the Agent or any
Bank pursuant hereto shall be deemed to constitute the Agent or the
Banks a partnership, an association, a joint venture or other
entity.
Section 8.09. Counterparts. This Agreement may be executed
------------
in any number of counterparts and by the different parties hereto
on separate counterparts, each of which when so executed and
delivered shall be an original, but all of which shall together
constitute one and the same instrument.
Section 8.10. Effectiveness; Survival of Indemnities. This
--------------------------------------
Agreement shall become effective on the date (the "Effective Date")
on which the conditions specified in Section 3.02 have been
------------
satisfied and on which all of the parties hereto shall have signed
a counterpart hereof (whether the same or different counterparts)
and shall have delivered the same to the Agent pursuant to Section
-------
8.01 or, in the case of the Banks, shall have given to the Agent
- ----
written or telecopy notice (actually received) at such office that
this Agreement has been signed and mailed to the Agent. The
obligations of the Company under Sections 2.11, 2.13, 2.15, 2.17
------------- ---- ---- ----
and 8.04 and of the Banks under Section 7.06 shall survive the
---- -----------
payment in full of the Obligations owed to each Bank after the
Maturity Date.
Section 8.11. Headings Descriptive. The headings of the
--------------------
several sections and subsections of this Agreement, and the Table
of Contents, are inserted for convenience only and shall not in any
way affect the meaning or construction of any provision of this
Agreement.
<PAGE>
Section 8.12. Survival of Representations. All covenants,
---------------------------
agreements, representations and warranties made herein and in any
certificate delivered pursuant hereto shall survive the making by
the Banks of the Loans and the execution and delivery to the Agent
for the account of any Bank of any Notes evidencing the Loans,
regardless of any investigation made by the Agent or the Banks and
of the Agent's and the Banks' access to any information and shall
continue in full force and effect so long as any Indebtedness or
obligation created hereunder is outstanding and unpaid.
Section 8.13. Severability. In case any one or more of the
------------
provisions contained in this Agreement or any Note should be
invalid, illegal or unenforceable in any respect in any
jurisdiction, the validity, legality and enforceability of such
provisions shall not be affected or impaired in any other
jurisdiction, nor shall the remaining provisions contained herein
and therein in any way be affected or impaired thereby.
Section 8.14. Prior Lenders and GATX. Each of the parties
-----------------------
hereto hereby acknowledges and agrees that GATX and the Prior
Lenders are no longer parties to this Agreement and, effective as
of the Second Restatement Date, neither GATX nor any Prior Lender
shall have any rights (except rights to indemnification that may
continue pursuant to the terms of previous documentation) or
obligations hereunder.
[signature pages follow]
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
THE COMPANY:
GENERAL AMERICAN TRANSPORTATION
CORPORATION
By:____________________________
Name:____________________________
Title:___________________________
500 West Monroe Street
Chicago, Illinois 60661
Attention: Treasurer
Telephone No.: (312) 621-8468
Telex No.: 9102215697
Telecopier No.: (312) 621-6645
THE AGENT:
BANKERS TRUST COMPANY
By:____________________________
Name:____________________________
Title:___________________________
One Bankers Trust Plaza
New York, New York 10006
Attention: Ms. Mary Rodwell
Telephone No.: (212) 250-2955
Telex No.: 62922
Answerback: BANKTRUST NYK
Telecopier No.: (212) 250-2340
with a copy to:
Bankers Trust Company
Representative Office
233 South Wacker Drive
Chicago, Illinois 60606
Attention: Mr. Robert Willoughby
Telephone No. (312) 993-8149
Telex No.: 210106
Answerback: BTCI-UR
Telecopier No.: (312) 993-8137
<PAGE>
THE BANKS:
Commitment
Commitment Percentage
- ---------- -----------
$25,000,000 10.0% ABN AMRO BANK N.V.,
CHICAGO BRANCH
By:_________________________________
Name:____________________________
Title:___________________________
By:_________________________________
Name:____________________________
Title:___________________________
135 South LaSalle Street
Suite 525
Chicago, Illinois 60603
Attention: Mr. Lawrence O. Riley
Telephone No: (312) 443-2733
Telex No.: 256243
Telecopier No.: (312) 606-8425
25,000,000 10.0% THE BANK OF NEW YORK
By:_________________________________
Name:____________________________
Title:___________________________
One Wall Street, 19th Floor
New York, New York 10286
Attention: Mr. John Lambert
Telephone No.: (212) 635-8044
Telex No.: 12304
Telecopier No.: (212) 635-1208
<PAGE>
$25,000,000 10.0% BANKERS TRUST COMPANY
By:_________________________________
Name:____________________________
Title:___________________________
One Bankers Trust Plaza
New York, New York 10006
Attention: Ms. Mary Rodwell
Telephone No.: (212) 250-2955
Telex No.: 62922
Answerback: BANKTRUST NYK
Telecopier No.: (212) 250-2340
with a copy to:
Bankers Trust Company
Representative Office
233 South Wacker Drive
Chicago, Illinois 60606
Attention: Mr. Robert Willoughby
Telephone No. (312) 993-8149
Telex No.: 210106
Answerback: BTCI-UR
Telecopier No.: (312) 993-8137
25,000,000 10.0% THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By:_________________________________
Name:____________________________
Title:___________________________
One Chase Manhattan Plaza, 6th Floor
New York, New York 10081
Attention: Mr. Luca Bettini
Mr. David Zeitler
Telephone No.: (212) 552-2138
(212) 552-3325
Telex No.: 126671 or 125568
Answerback: Chamanbank
Telecopier No.: (212) 552-5242
<PAGE>
$25,000,000 10.0% CHEMICAL BANK
By:_________________________________
Name:____________________________
Title:___________________________
270 Park Avenue
8th Floor
New York, New York 10017
Attention: Mr. A. Frank Guerra
Telephone No.: (212) 270-4688
Telex No.:
Answerback:
Telecopier No.: (212) 270-1469
25,000,000 10.0% THE FIRST NATIONAL BANK OF CHICAGO
By:_________________________________
Name:____________________________
Title:___________________________
One First National Plaza, Suite 0084
Chicago, Illinois 60670
Attention:
Mr. Raymond M. Neihengen, Jr.
Ms. Mary Head
Telephone No.: (312) 732-2968
(312) 732-6224
Telex No. (1): 4330253
Answerback: FNBC UI
Telex No. (2): 190201
Answerback: FNBC UI
Telecopier No. (312) 732-5296
<PAGE>
$25,000,000 10.0% THE INDUSTRIAL BANK OF JAPAN, LTD.
By:_________________________________
Name:____________________________
Title:___________________________
The Industrial Bank of Japan, Ltd.
227 West Monroe Street
Suite 2600
Chicago, Illinois 60606
Attention: Mr. John Bowin
Telephone No.: (312) 855-8264
Telex No.: 285381
Telecopier No.: (312) 855-8200
25,000,000 10.0% MELLON BANK, N.A.
By:_________________________________
Name:____________________________
Title:___________________________
Mellon Financial Services
55 West Monroe Street, Suite 2600
Chicago, Illinois 60603
Attention: Mr. Reginald T. Overton
Telephone No.: (312) 357-3402
Telex No.: 270279
Answerback: MELLONOCO
Telecopier No.: (312) 357-3414
15,000,000 6.0% BANK OF MONTREAL
By:_________________________________
Name:____________________________
Title:___________________________
115 South LaSalle Street - 12W
Chicago, Illinois 60603
Attention: Mr. David J. Thompson
Telephone No: (312) 750-4372
Telex No.:
Answerback:
Telecopier No.: (312) 750-4314
<PAGE>
$15,000,000 6.0% SWISS BANK CORPORATION
By:_________________________________
Name:____________________________
Title:___________________________
By:_________________________________
Name:____________________________
Title:___________________________
141 West Jackson, 8th Floor
Chicago, Illinois 60604
Attention: Mr. Neil R. Gunn
Telephone No.: (312) 554-6401
Telex No. (1): 254527
Answerback: Swisbank cgo
Telex No. (2): 256223
Answerback: Swissbnk cgo
Telecopier No.: (312) 554-6410
or 6411
10,000,000 4.0% CITIBANK, N.A.
By:_________________________________
Name:____________________________
Title:___________________________
Citibank, N.A.
399 Park Avenue
12th Floor, Zone 21
New York, New York 10043
Attention: Ms. Barbara Cohen
Telephone No.: (212) 559-8712
Telecopier No.: (212) 793-3824
with a copy to:
Citibank, N.A.
400 Perimeter Center Terrace
Suite 600
Atlanta, Georgia 30346
Attention: Mr. Bruce W. Simmons
Telephone No.: (404) 668-8108
Telecopier No.: (404) 668-8137
<PAGE>
$10,000,000 4.0% J.P. MORGAN DELAWARE
By:_________________________________
Name:____________________________
Title:___________________________
J.P. Morgan Delaware
902 Market Street
6th Floor
Wilmington, Delaware 19801
Attention: Mr. David J. Morris
Telephone No.: (302) 651-3788
Telex No.:
Answerback:
Telecopier No.: (302) 654-5336
with a copy to:
___________________________________
____________________________________
____________________________________
Attention: ________________________
Telephone No.:
Telex No.:
Answerback:
Telecopier No.:
- ------------ ----
$250,000,000 100% TOTAL
<PAGE>
<TABLE>
<CAPTION>
Schedule 1
LENDING OFFICES
---------------
Bank Base Rate Loans Eurodollar Loans
------ ---------------- ------------------
<C> <S> <S> <S>
1. ABN AMRO Bank N.V., 135 South LaSalle Street 135 South LaSalle Street
Chicago Branch Suite 525 Chicago, Illinois 60603
Chicago, Illinois 60603
2. The Bank of New York Commercial Loan Servicing Eurodollar/Cayman Funding
Department Area
101 Barclay Street 101 Barclay Street
New York, New York 10007 New York, New York 10007
3. Bankers Trust Company One Bankers Trust Plaza One Bankers Trust Plaza
New York, New York 10006 New York, New York 10006
4. The Chase Manhattan One Chase Manhattan Plaza One Chase Manhattan Plaza
Bank (National New York, New York 10081 New York, New York 10081
Association)
5. Chemical Bank 270 Park Avenue, 8th Floor 270 Park Avenue, 8th Floor
New York, New York 10017 New York, New York 10017
6. The First National One First National Plaza One First National Plaza
Bank of Chicago Suite 0084 Suite 0084
Chicago, Illinois 60670 Chicago, Illinois 60670
7. The Industrial Bank of Three First National Plaza Three First National Plaza
Japan, Ltd. Suite 1800 Suite 1800
Chicago, Illinois 60602 Chicago, Illinois 60602
8. Mellon Bank, N.A. Three Mellon Bank Center Three Mellon Bank Center
Pittsburgh, Pennsylvania Pittsburgh, Pennsylvania
15259 15259
9. Bank of Montreal 115 South LaSalle Street - 115 South LaSalle Street-
12W 12W
Chicago, Illinois 60603 Chicago, Illinois 60603
<PAGE>
10. Swiss Bank Corporation 141 West Jackson 141 West Jackson
8th Floor 8th Floor
Chicago, Illinois 60604 Chicago, Illinois 60604
11. Citibank, N.A. 400 Perimeter Center 400 Perimeter Center
Terrace Terrace
Suite 600 Suite 600
Atlanta, Georgia 30344 Atlanta, Georgia 30344
Attention: Ms. Carol Attention: Ms. Carol
Huntington Huntington
12. J.P. Morgan Delaware 500 Stanton-Christiana Road 500 Stanton-Christiana Road
Newark, Delaware 19713-2107 Newark, Delaware 19713-2107
Attention: Loan Operations Attention: Loan Operations
Department Department
</TABLE>
<PAGE>
Exhibit A
---------
PROMISSORY NOTE
$ _____________, ____
-------------------- New York, New York
FOR VALUE RECEIVED, GENERAL AMERICAN TRANSPORTATION
CORPORATION, a New York corporation (the "Company"), hereby
promises to pay on March 31, 1998 to the order of _____________
__________________________________ (the "Payee"), at the principal
office of Bankers Trust Company, One Bankers Trust Plaza, New York,
New York 10006, the principal sum of ________________ ($______
_) in lawful money of the United States of America, or, if less
than such principal amount, the aggregate unpaid principal amount
of all Loans made to the undersigned by the Payee pursuant to the
Credit Agreement.
The Company shall pay interest from the date hereof on
the unpaid principal amount of this Note from time to time
outstanding during the period from the date hereof until such
principal amount is paid in full at the rates, determined in the
manner, and on the dates or occurrences, specified in the Credit
Agreement.
This promissory note is one of the Notes referred to in
the Third Amended and Restated Revolving Credit Agreement dated as
of March 31, 1994, among the Company, the Payee, certain other
Banks named therein and Bankers Trust Company, as Agent for such
Banks (as the same may be amended, supplemented or otherwise
modified from time to time, the "Credit Agreement") and is entitled
to the benefits of the Credit Agreement. Capitalized terms used in
this Note without definition shall have the same meanings as are
ascribed to such terms in the Credit Agreement.
All Loans made by the Payee pursuant to the Credit
Agreement, and all payments of the principal amount of such Loans,
shall be endorsed by the holder of this Note on the schedule
annexed hereto. Failure to record such advances or payments shall
not diminish any rights of the Payee or relieve the Company of any
liability hereunder or under the Credit Agreement. This Note is
subject to prepayment, and its maturity is subject to acceleration,
in each case upon the terms provided in the Credit Agreement.
This Note may not be modified or discharged orally, by
course of dealing or otherwise, but only by a writing duly executed
by the holder hereof.
In the event that any action, suit or proceeding is
brought by the holder hereof to collect this Note, the undersigned
shall be liable for all costs and expenses of collection,
including, without limitation, reasonable attorneys' fees and
disbursements.
<PAGE>
This Note has been delivered in the City and State of New
York, and shall be enforced under and governed by the laws of the
State of New York applicable to contracts made and to be performed
entirely within said State, without reference to any choice or
conflict of laws principles.
GENERAL AMERICAN TRANSPORTATION
CORPORATION, a New York corporation
By: ______________________________
Title:_____________________________
<PAGE>
SCHEDULE OF ADVANCES AND PAYMENTS OF PRINCIPAL ANNEXED TO AND CONSTITUTING A
PART OF PROMISSORY NOTE DATED ___________, ____ MADE BY GENERAL AMERICAN
TRANSPORTATION CORPORATION PURSUANT TO THIRD AMENDED AND RESTATED REVOLVING
CREDIT AGREEMENT DATED AS OF MARCH 31, 1994 WITH VARIOUS BANKS AND BANKERS
TRUST COMPANY AS AGENT
Amount of
Principal
Paid or
Prepaid
Interest Principal This Date Unpaid
Period Interest Amount of and Loan Principal
Type of Applicabl Rate Loan Made To Which Balance Notation
Date Loan to Loan Per Annum This Date Applied This Date Made By
- ----- ---- ------- --------- --------- ------- --------- ------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
Exhibit B
----------
March 31, 1994
To the Persons Listed on Schedule A Hereto
----------
Re: General American Transportation Corporation
Ladies and Gentlemen:
This opinion is delivered to you pursuant to Section 3.02(b) of the
Third Amended and Restated Revolving Credit Agreement dated as of March 31,
1994 (the "Credit Agreement") by and among General American Transportation
Corporation, a New York corporation (the "Company"), and each of you. I am
Secretary of the Company, and I have acted as internal counsel to the Company
in connection with the preparation, execution and delivery by the Company of
the Credit Agreement. Capitalized terms used herein shall have the meaning
given to such terms in the Credit Agreement.
In my capacity as such internal counsel, I or members of my staff
have examined originals or copies of the Credit Agreement and such records,
documents, agreements and other instruments as in my or their judgment are
necessary or appropriate to enable me to render the opinions expressed below.
In such examination, the genuineness of all signatures other than signatures
on behalf of the Company, the authenticity of all documents submitted as
originals and the conformity to originals of all documents submitted as copies
have been assumed.
On the basis of the foregoing and in reliance thereon, I am of the
opinion that, as of the date hereof:
(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of New York, has the corporate
power and authority to conduct the business in which it is engaged, and is duly
qualified and is in good standing as a foreign corporation under the laws of
each jurisdiction where its failure to so qualify or be in good standing could
have a material adverse effect on its ability to fulfill its obligations under
the Credit Agreement.
(b) The execution, delivery and performance by the Company of the
Credit Agreement, (i) are within the corporate power of the Company, (ii) have
been duly authorized by all necessary corporate action, (iii) do not violate or
create a default under any law, rule or regulation, or the Certificate of
Incorporation or By-laws of the Company, and (iv) do not violate or create a
default under any contractual provision known to me, after due inquiry, binding
on or affecting the Company or its property.
<PAGE>
(c) No authorization, consent, license, or approval or other action
by, and no notice or declaration to or filing or registration with, any court,
governmental authority, commission, board, regulatory body, bureau or agency is
required in connection with the execution, delivery and performance by the
Company of the Credit Agreement made by the Company.
(d) The Credit Agreement has been duly executed and delivered by the
Company.
(e) There is no action, suit or proceeding, or any governmental
investigation or any arbitration, in each case pending or, to the best of my
knowledge, threatened against the Company, any of its Subsidiaries, or any
material property of any thereof before any court or arbitrator or any
governmental or administrative body, agency or official (i) which challenges
the validity of the Credit Agreement, or (ii) which if adversely determined
could have a material adverse effect on the ability of the Company to fulfill
its obligations under the Credit Agreement.
I am qualified to practice law in the State of Illinois and do not
purport to be an expert on, or express any opinion concerning the laws of any
jurisdiction other than the laws of the State of Illinois, the corporation
law of the State of New York and the Federal laws of the United States.
I am furnishing this opinion to you solely for your benefit and this
opinion is not to be used, circulated, quoted or otherwise referred to for any
other purpose without my prior written consent; provided, that this opinion
--------
may be relied upon by any financial institution that becomes a Bank after the
date hereof in accordance with the terms and conditions of the Credit Agreement.
Very truly yours,
<PAGE>
Schedule A to Opinion
of Paul A. Heinen, Esq.
dated March 31, 1994
Addressees
----------
Mayer, Brown & Platt
787 Seventh Avenue
New York, New York 10019
ABN AMRO Bank N.V., Chicago Branch
The Bank of New York
Bankers Trust Company
The Chase Manhattan Bank (National Association)
Chemical Bank
The First National Bank of Chicago
The Industrial Bank of Japan, Ltd.
Mellon Bank, N.A.
Bank of Montreal
Swiss Bank Corporation
Citibank, N.A.
J.P. Morgan Delaware
as Banks, and
Bankers Trust Company, as Agent
<PAGE>
Exhibit C
----------
[letterhead of Mayer, Brown & Platt]
March 31, 1994
--------------
BANKERS TRUST COMPANY,
individually and as Agent
One Bankers Trust Plaza
New York, New York 10006
-and-
the Banks listed on
Schedule A hereto
----------
Re: General American Transportation Corporation
-------------------------------------------
Ladies and Gentlemen:
This opinion is delivered to you pursuant to Section 3.02(c) of the
Third Amended and Restated Revolving Credit Agreement dated as of March 31, 1994
(the "Credit Agreement") by and among General American Transportation
Corporation, a New York corporation ("GATC"), and each of you. We have acted
as special New York counsel to GATC in connection with the execution and
delivery by GATC of the Credit Agreement. Capitalized terms used herein shall
have the meanings given to such terms in the Credit Agreement.
In our capacity as such special counsel, we have examined the form of
opinion of Paul A. Heinen, Esq., Secretary and acting as internal counsel to
GATC, dated the date hereof, delivered pursuant to Section 3.02(b) of the Credit
Agreement, and have examined an executed copy of the Credit Agreement and such
records, documents, agreements and other instruments and statements as in our
judgment are necessary to enable us to render the opinions expressed below.
In our examination, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity
to originals of all documents submitted to us as copies or execution copies.
As to any questions of fact relevant to the opinions expressed herein, we have
relied upon, and assume (without investigation) the accuracy of, representations
and warranties and statements contained in the Credit Agreement and in any other
instruments reviewed by us. We have also relied (without investigation) upon
the legal opinion of Paul A. Heinen, Esq. referred to above as to all matters of
law and fact covered herein.
<PAGE>
On the basis of the foregoing and in reliance thereon, and subject to
the qualifications, assumptions and limitations set forth below, we are of the
opinion that, as of the date hereof, the Credit Agreement constitutes the legal,
valid and binding obligation of GATC, enforceable against GATC in accordance
with its terms.
The opinion expressed above is subject to the following
qualifications, assumptions and limitations:
[to follow]
The opinions expressed above are limited to, and are only expressed
under, the laws of the State of New York and Federal law of the United States of
America, and we do not purport to express any opinion herein concerning the laws
of any other jurisdiction. Without limiting the generality of the foregoing,
we express no opinion as to the choice of law provisions of the Credit Agreement
with respect to any particular Bank as to the effect of any law which limits the
rates of interest legally chargeable or collectible and we express no opinion
as to the effect of any law or regulation governing any maximum amount of credit
that may be extended by any Bank.
This opinion is rendered only to the Agent and the Banks and is solely
for their benefit in connection with the above transactions. This opinion may
not be relied upon by the Agent or the Banks for any other purpose or relied
upon or delivered to any other person, firm or corporation for any purpose
(except for any delivery required in accordance with applicable law), without
our prior written consent.
Very truly yours,
<PAGE>
SCHEDULE A
----------
ABN AMRO Bank N.V., Chicago Branch
The Bank of New York
Bankers Trust Company
The Chase Manhattan Bank (National Association)
Chemical Bank
The First National Bank of Chicago
The Industrial Bank of Japan, Ltd.
Mellon Bank, N.A.
Bank of Montreal
Swiss Bank Corporation
Citibank, N.A.
J.P. Morgan Delaware
<PAGE>
Exhibit D
----------
[letterhead of GATX Corporation]
March 31, 1994
Bankers Trust Company,
as Agent
and
Each of the Banks party
to the Credit Agreement
(as hereinafter defined)
Ladies and Gentlemen:
Reference is made to that certain Third Amended and Restated Revolving
Credit Agreement dated as of March 31, 1994 among General American Transporta-
tion Corporation, a New York corporation (the "Company"), the Banks party
thereto and Bankers Trust Company, as Agent (as amended, modified or
supplemented from time to time, the "Credit Agreement"). Capitalized terms not
otherwise defined herein shall have the meaning ascribed thereto in the Credit
Agreement.
GATX Corporation, a New York corporation and the Company's corporate
parent ("GATX"), hereby confirms to each of you that, as of this date, it has
no present intention to (i) sell, lease or otherwise dispose of or encumber any
of the shares of any class of the capital stock of the Company, (ii) merge into
or consolidate with any other Person or sell, lease or otherwise dispose of, in
any such case, other than in the normal course of business, all or any
substantial part of its property or assets or (iii) cause or permit any of its
Subsidiaries to merge into or consolidate with any other Person or sell, lease
or otherwise dispose of (in any such case, other than in the normal course of
business) any part of the property or assets of any of its Subsidiaries, which
merger, consolidation, sale, lease or other disposition is material to GATX and
all of its Subsidiaries taken as a whole, other than:
(A) a merger of any Subsidiary of GATX (except the Company) into
GATX or any other Subsidiary of GATX; or
<PAGE>
(B) a sale, lease or other disposition of all or any substantial
part of the property or assets of any Subsidiary of GATX (except the
Company) by such Subsidiary to GATX or any other Subsidiary of GATX,
to the extent that any such transaction described in this clause (B)
or in clause (A) above would not have a material adverse effect upon
(x) the business, properties, financial condition, prospects or
operations of the Company or any of its Subsidiaries or (y) the
ability of the Company to repay the Indebtedness incurred under the
Credit Agreement.
In consideration of the transactions contemplated by the Credit Agreement, GATX
hereby agrees that it will not cause or permit any transaction of the type
described in clauses (i), (ii) or (iii) above to occur without the prior written
consent of the Agent and each Bank, which consent shall not be unreasonably
withheld.
GATX hereby acknowledges that it is no longer a party to the Credit
Agreement and that, effective as of the Second Restatement Date, it no longer
has any rights or obligations thereunder.
GATX CORPORATION, a New York corporation
By:______________________
Title:___________________
<PAGE>
EXHIBIT E
----------
FORM OF
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement"), dated as
of ____________, by and between ____________________, in its capacity as a Bank
party to the Credit Agreement referred to below ("Assignor"),
and _____________________ ("Assignee"). All capitalized terms used herein
without definition shall have the respective meanings provided such terms in the
Credit Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, Assignor is a party to that certain Third Amended and Restated
Revolving Credit Agreement, dated as of March 31, 1994 (as amended, supplemented
or otherwise modified from time to time, the "Credit Agreement"), by and among
General American Transportation Corporation, a New York corporation (the
"Borrower"), the Banks party thereto (including Assignor) and Bankers Trust
Company, as Agent;
WHEREAS, Assignor has a Commitment under the Credit Agreement pursuant to
which Assignor has made, or may from time to time be required to make, Loans to
the Borrower;
WHEREAS, Assignor and Assignee wish Assignor to assign to Assignee
Assignor's rights and obligations arising from and after the Effective Date (as
defined below) under the Credit Agreement with respect to a portion of (i) its
Commitment under the Credit Agreement ("Assignor's Commitment") and (ii) its
outstanding Loans, if any (collectively, the "Loans");
WHEREAS, Assignor and Assignee also wish (i) Assignee to assume the
obligations of Assignor under the Credit Agreement and the other documents
executed and delivered in connection therewith (together with the Credit Agree-
ment, the "Loan Documents") with respect to the Assignee's Share (as defined
below) to the extent of the rights so assigned and (ii) Assignor to be released
from the obligations so assumed by Assignee; and
WHEREAS, Borrower, by its execution hereof, is providing its written
consent to the assignment accomplished by this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein contained,
the parties hereto hereby agree as follows:
<PAGE>
1. Assignment. Effective on the Effective Date (as defined
----------
below) and upon payment of the amount specified in clause (x) of the first
sentence of Section 3 hereof, Assignor hereby assigns and transfers to Assignee,
---------
without recourse, representation or warranty of any kind, express or implied
(except as provided in Sections 6(a) and (b) hereof), and subject to Section
--------------------
4(b) hereof, that portion described on Annex I hereto as the "Assignee's Share"
-------
("Assignee's Share") of all of Assignor's rights, title and interest arising
under (i) the Credit Agreement relating to Assignor's Commitment including,
without limitation, all rights and obligations with respect to the Loans
attributable to Assignee's Share and (ii) the other Loan Documents with respect
to Assignee's Share as will result in Assignee having from and after the
Effective Date the percentage of the aggregate total Commitments ("Assignee's
Percentage") specified in item 1 of Annex I attached hereto. The principal
-------
amount of Assignee's Share is also specified in item 1 of Annex I attached
-------
hereto.
2. Assumption. Effective on the Effective Date, Assignee hereby
----------
irrevocably purchases, assumes and takes from Assignor, and Assignor is hereby
expressly and absolutely released from, all of Assignor's obligations arising
under the Credit Agreement and the other Loan Documents relating to Assignee's
Share and of any outstanding Loans attributable to Assignee's Share.
3. Payment. In consideration of the assignment by Assignor to Assignee
-------
as set forth above, Assignee agrees to pay to Assignor, in Dollars and in
immediately available funds, (x) on or prior to the Effective Date, an amount
specified by Assignor in writing on or prior to the Effective Date which
represents Assignee's Share attributable to the principal amount of the Loans
made pursuant to the Credit Agreement and outstanding on the Effective Date;
and (y) from time to time thereafter, such other amounts (if any), which
Assignee has agreed in writing to pay to Assignor after the Effective Date. In
consideration of the assumption by Assignee as set forth above, Assignor agrees
to pay to Assignee within two (2) Business Days of the Effective Date, an
assignment fee (if any), which amount has been previously agreed to in writing
by Assignor and Assignee.
Notwithstanding anything to the contrary contained in this Agreement, if
and when Assignee receives or collects (i) any payment of principal or interest
relating to any Loans or (ii) any payment of fees that in either case are
required to be paid to Assignor pursuant to this Agreement, then Assignee shall
distribute to Assignor such payment.
To the extent payment of funds payable to Assignee or Assignor under this
Agreement are not made within two (2) Business Days of receipt, each of Assignee
or Assignor, as the case may be, shall be entitled to recover such amount
together with interest thereon at the Federal Funds Effective Rate (as defined
in the Credit Agreement) per annum accruing from the date of receipt of such
funds by the other party.
<PAGE?
4. Effectiveness.
-------------
(a) (i) This Agreement shall become effective on the date (the
"Effective Date") Assignor, Assignee, the Agent and the Borrower shall have
signed a counterpart hereof (whether the same or different counterparts), and,
in the case of Assignee, the Borrower shall have delivered same to Assignor.
Assignor hereby notifies the Agent of the assignment, effective as of the
Effective Date, of Assignee's Share and any Loans attributable to Assignee's
Share, and directs the Agent to pay Assignee (i) on any payment of principal
of, or interest on, any Loan paid by, or on behalf of, the Borrower pursuant to
the Credit Agreement and the other Loan Documents and attributable to Assignee's
Share of any Loans at that rate of interest specified in the Credit Agreement
and (ii) any fees paid by, or on behalf of, the Borrower and attributable to
Assignee's Share of the Commitments which are specified in the Credit Agreement.
No (i) failure of either Assignee or Assignor to settle any amount owed to the
other hereunder or otherwise (except with respect to the payment of the
administrative fee to the Agent and the payment due under clause (x) of the
first sentence of Section 3 hereof), (ii) dispute respecting any other
---------
settlement, including, without limitation, in respect of the Borrower, or (iii)
the bankruptcy, insolvency or other condition whatsoever respecting any Person
shall in any way impair, reduce or otherwise affect the effectiveness of this
Agreement.
(ii) Assignor, Assignee and the Agent each acknowledges and agrees
that from and after the Effective Date, the Agent shall make all payments under
the Credit Agreement in respect of Assignee's Share (including, without
limitation, all payments of principal, interest and commitment or other fees
(if any) with respect thereto, whether or not such payments shall have accrued
prior to or after the Effective Date) to Assignee only. Assignor and Assignee
hereby agree further to make all appropriate adjustments in payments to either
of them under the Credit Agreement for periods prior to the Effective Date
directly between themselves.
(b) With respect to any Loan attributable to Assignee's Share, if and
when Assignor receives or collects any payment of principal, interest, commit-
ment or other fees with respect to Assignee's Share for any period commencing
on or after the Effective Date, Assignor shall distribute to Assignee that
portion attributable to Assignee's Share, but only to the extent such portion
attributable to Assignee's Share accrued on or after the Effective Date and
was not theretofore paid to Assignee by the Borrower or otherwise. Any
principal, interest or fees paid to Assignor by the Borrower prior to the
Effective Date shall be retained by Assignor. Any principal, interest or fees
paid to Assignee which accrued prior to the Effective Date shall be promptly
returned, in the form received, by Assignee to Assignor. Assignee recognizes
and agrees that (i) it shall receive no payment on account of any Agent's fees
<PAGE>
or other amounts or expenses (including counsel fees) payable to the Agent (in
such capacity and for its own account), (ii) this Agreement shall not operate
to assign any rights or delegate any obligations of the Agent (in such
capacity), and (iii) notwithstanding anything to the contrary in this Agreement,
Assignor shall retain all of its rights to indemnification under the Credit
Agreement and the other Loan Documents for any events, acts or omissions
occurring prior to the Effective Date.
(c) The Agent, by its execution hereof, acknowledges the assignment
described above and agrees to make payments in respect of principal, interest
and fees as described in clause (a) of this Section 4.
---------
5. Rights as Bank Under Credit Agreement. In accordance with Section
-------------------------------------
8.06 of the Credit Agreement, (i) as of the Effective Date, Assignee will be and
become a "Bank" under and party to the Credit Agreement and shall have (a) all
of the rights and obligations of a Bank thereunder and under the other Loan
Documents (to the extent of the assignment and assumption of Assignee's Share
effected by this Agreement) and (b) the addresses for (A) notice purposes and
(B) Lending Offices set forth in items 2 and 3, respectively, of Annex I
-------
attached hereto, (ii) promptly on or after the Effective Date, the Borrower will
execute and deliver such documents and instruments as Assignor or Assignee may
reasonably require and (iii) as of the Effective Date, the Agent shall record
such assignment in the Register. The Lending Offices of Assignor are set forth
in item 4 of Annex I attached hereto.
-------
6. Miscellaneous.
-------------
(a) Each of Assignor and Assignee represents and warrants to the
other party as follows:
(i) it has full power and authority, and has taken all action
necessary, to execute and deliver this Agreement and to fulfill the obligations
hereunder, and to consummate the transactions contemplated hereby;
(ii) the making and performance by it of this Agreement and all
documents required to be executed and delivered by it hereunder do not and will
not violate any law or regulation of the jurisdiction of its incorporation or
any other law or regulation applicable to it;
(iii) this Agreement has been duly executed and delivered by it
and constitutes its legal, valid and binding obligation, enforceable in
accordance with the respective terms hereunder; and
<PAGE>
(iv) all approvals, authorizations, or other actions by, or
filing with, any governmental authority necessary for the validity or
enforceability of its obligations under this Agreement have been obtained.
(b) Assignor represents and warrants to Assignee that Assignee's Share
and the Loans attributable to Assignee's Share are not subject to any liens or
security interests created by Assignor.
(c) Except as set forth in Sections 6(a) and (b) hereof, Assignor makes
---------------------
no representations or warranties, express or implied, to Assignee and shall
not be responsible to Assignee for (i) the execution, effectiveness, genuine-
ness, legality, validity, enforceability, collectibility, regulatory status
or sufficiency of the Credit Agreement, (ii) the taking of any action, or the
failure to take any action, with respect to any of the Loan Documents, (iii)
any representations, warranties, recitals or statements made in any of the
Loan Documents or in any written or oral financial or other statements,
instruments, reports, certificates or documents made or furnished by
Assignor to Assignee or by or on behalf of the Borrower or any of its
Affiliates to Assignor or Assignee in connection with the Loan Documents and
the transactions contemplated thereby, (iv) the financial or other condition
of the Borrower or any other Person, or (v) any other matter having any
relation to any of the foregoing. Assignor shall not be required to ascertain
or inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained in any of the Loan
Documents or as to the use of the proceeds of the Loans or the existence or
possible existence of any Default or Event of Default. Additionally,
Assignor shall not have any duty or responsibility either initially or on a
continuing basis to make any investigation or any appraisal on Assignee's behalf
or to provide Assignee with any credit or other information with respect
thereto, whether coming into Assignor's possession before the execution of
the Credit Agreement or at any time or times thereafter. Assignor shall have
no responsibility with respect to the accuracy of, or the completeness of,
any information provided to Assignee, whether by Assignor or by or on behalf
of the Borrower or any other Person obligated under the Credit Agreement or any
related instrument or document.
(d) Assignee represents and warrants that it has made its own independent
investigation of each of the foregoing matters, including, without limitation,
the financial condition and affairs of the Borrower and its Affiliates, in
connection with the making of the Loans and the execution of this Agreement
(including, but not limited to, the solvency of the Borrower and its Affiliates,
the ability of the Borrower and its Affiliates to pay their respective debts
as they mature and the capital of the Borrower and its Affiliates remaining
after the closing under the Credit Agreement and the other Loan Documents and
the consummation of the transactions contemplated thereby) and has made and
shall continue to make its own appraisal of the creditworthiness of the
Borrower and its Affiliates. Assignee (i) confirms that it has received copies
<PAGE>
of the Loan Documents together with copies of such other closing documents
delivered in connection with the Credit Agreement, such financial statements and
such other documents and information as it has requested or deemed appropriate
to make its own credit analysis and decision to enter into this Agreement and
(ii) agrees that it will, independently and without reliance upon the Agent,
Assignor or any other Bank and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Loan Documents.
(e) Each of the parties hereto agrees to take such action and execute and
deliver such documents as any party hereto may reasonably request from time to
time in order to more fully implement the purposes of this Agreement.
(f) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW (WITHOUT GIVING
EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF) OF THE STATE OF NEW YORK.
(g) Except as otherwise set forth herein, this Agreement sets forth the
entire agreement between Assignor and Assignee relating to the subject matter
hereof, and no term or provision of this Agreement may be amended, changed,
waived, discharged or terminated orally or otherwise, except in a writing
signed by Assignor and Assignee.
(h) This Agreement may be executed in one or more counterparts, each of
which shall be an original and all of which, taken together, shall constitute
one and the same instrument.
(i) Each of the parties hereto agrees that each party shall bear its own
expenses in connection with the preparation and execution of this Agreement and
the consummation of the Assignment described herein. Assignee further agrees
that Assignee shall send a check in the amount of $2,000 to the Agent on or
prior to the Effective Date, as payment of the administrative fee described
in Section 8.06(c) of the Credit Agreement.
(j) All representations and warranties made herein and indemnities
provided for herein shall survive the consummation of the transactions
contemplated hereby.
(k) Assignor may at any time or from time to time grant to others assign-
ments in its share of the Commitments and the Loans in accordance with the
Credit Agreement but not in the portions thereof assigned to Assignee hereunder.
<PAGE>
(l) This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. Neither of the
parties hereto may assign or transfer any of its rights or obligations under
this Agreement without the prior consent of the other party. The preceding
sentence shall not limit the right of Assignee to assign all or part of
Assignee's Share in the manner contemplated by the Credit Agreement.
[signature page follows]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their respective duly authorized officers as of the date first above written.
___________________________________
Individually as Assignor
By: _______________________________
Title:_____________________________
___________________________________
Individually as Assignee
By:________________________________
Title:_____________________________
The undersigned hereby acknowledges and consents to the terms and
provisions of this Agreement.
GENERAL AMERICAN TRANSPORTATION
CORPORATION
By:____________________________
Its:___________________________
The undersigned hereby acknowledges the terms and provisions of this
Agreement, and agrees to make payments in respect of interest and fees as
described in Section 4(a) hereof, and further hereby confirms that it has
recorded the assignment effected by this Agreement in the Register.
BANKERS TRUST COMPANY, as Agent
By:____________________________
Title:_________________________
<PAGE>
ANNEX I TO
ASSIGNMENT AND ASSUMPTION AGREEMENT
1. Assignee's Share:
(i) Total Commitments $_____________
(ii) Assignee's Percentage (of
Total Commitments) _____________%
(iii) Principal Amount of Assignee's
Share of Commitments $_____________
2. Address of Assignee for notice purposes:
_______________________
_______________________
_______________________
Attention:_____________
Telephone:_____________
Telex:_________________
(Answerback: __________)
Telecopier: ___________
3. Lending Office(s) of Assignee:
(a) For Base Rate Loans:
________________________
________________________
________________________
(b) For Eurodollar Loans:
________________________
________________________
________________________
4. Lending Office(s) of Assignor:
(a) For Base Rate Loans:
________________________
________________________
________________________
(b) For Eurodollar Loans:
________________________
________________________
________________________
<PAGE>
EXHIBIT 12
GENERAL AMERICAN TRANSPORTATION CORPORATION
<TABLE>
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
IN MILLIONS, EXCEPT FOR RATIOS
<CAPTION>
Three Months Year Ended
Ended March 31 December 31
----------------
1994 1993 1993
------- ------ ------------
(Unaudited)
<S> <C> <C> <C>
Earnings available for fixed charges:
Net income...................................$ 20.7 $ 19.4 $ 74.1
Add (deduct):
Income taxes............................... 10.6 9.4 45.1
Equity in net earnings of affiliated
companies, net of distributions received. (2.9) (2.4) (11.5)
Interest on indebtedness and amortization
of debt discount and expense............. 18.2 21.4 78.8
Amortization of capitalized interest....... .3 .3 1.1
Portion of rents representative of interest
factor (deemed to be one-third).......... 3.4 2.5 13.2
------ ------ ------
Total earnings available for fixed charges...$ 50.3 $ 50.6 $200.8
====== ====== ======
Fixed Charges:
Interest on indebtedness and amortization
of debt discount and expense...............$ 18.2 $ 21.4 $ 78.8
Capitalized interest......................... .8 .7 2.4
Portion of rents representative of interest
factor (deemed to be one-third)............ 3.4 2.5 13.2
------ ------ ------
Total fixed charges..........................$ 22.4 $ 24.6 $ 94.4
====== ====== ======
Ratio of earnings to fixed charges(A)........... 2.25x 2.06x 2.13x
- -----------------
<FN>
(A) The ratio of earnings to fixed charges represents the number of times
"fixed charges" are covered by "earnings." "Fixed charges" consist of
interest on outstanding debt and capitalized interest, one-third (the
proportion deemed representative of the interest factor) of rentals, and
amortization of debt discount and expense. "Earnings" consist of
consolidated net income before income taxes and fixed charges, less equity
in net earnings of affiliated companies, net of distributions received.
</FN>
</TABLE>
-10-
<PAGE>
